INSMED Inc 10-Q for FY2023 Q2
INSMED Inc (INSM)
10-Q
2023-08-03
For: 2023-06-30
View Original
Added on
April 09, 2026
About this 10-Q
INSMED Inc filed this 10-Q on August 3, 2023, covering the quarter ended June 30, 2023 (FY2023 Q2).
Headline figures
Quarter ended June 30, 2023, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $77.23M
- up 18.4% from $65.22M a year earlier
- Net loss
- $244.81M
- compared with a net loss of $95.65M a year earlier
- Diluted EPS
- -$1.78
- compared with -$0.80 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
For the quarterly period ended June 30, 2023
OR
For the transition period from to
Commission File Number 000-30739
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation or organization) | (I.R.S. employer identification no.) | |||||||
| (Address of principal executive offices) | (Zip Code) | |||||||
(908 ) 977-9900
(Registrant’s telephone number including area code)
Not Applicable
(Former name, former address and former fiscal year, if changed since last report)
Securities registered pursuant to Section12(b) of the Act:
| Title of each class | Trading symbols | Name of each exchange on which registered | ||||||
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes x No ☐
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.
Accelerated filer o | ||||||||
Non-accelerated filer o | 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 complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No x
As of July 31, 2023, there were 143,800,000 shares of the registrant’s common stock outstanding.
INSMED INCORPORATED
FORM 10-Q
FOR THE QUARTER ENDED JUNE 30, 2023
INDEX
Unless the context otherwise indicates, references in this Form 10-Q to “Insmed Incorporated” refers to Insmed Incorporated, a Virginia corporation, and the “Company,” “Insmed,” “we,” “us” and “our” refer to Insmed Incorporated together with its consolidated subsidiaries. INSMED, PULMOVANCE, ARIKARES and ARIKAYCE are trademarks of Insmed Incorporated. This Form 10-Q also contains trademarks of third parties. Each trademark of another company appearing in this Form 10-Q is the property of its owner.
2
PART I. FINANCIAL INFORMATION
ITEM 1. CONSOLIDATED FINANCIAL STATEMENTS
INSMED INCORPORATED
Consolidated Balance Sheets
(in thousands, except par value and share data)
| As of | As of | ||||||||||
| June 30, 2023 | December 31, 2022 | ||||||||||
| (unaudited) | |||||||||||
| Assets | |||||||||||
| Current assets: | |||||||||||
| Cash and cash equivalents | $ | $ | |||||||||
| Marketable securities | |||||||||||
| Accounts receivable | |||||||||||
| Inventory | |||||||||||
| Prepaid expenses and other current assets | |||||||||||
| Total current assets | |||||||||||
| Fixed assets, net | |||||||||||
| Finance lease right-of-use assets | |||||||||||
| Operating lease right-of-use assets | |||||||||||
| Intangibles, net | |||||||||||
| Goodwill | |||||||||||
| Other assets | |||||||||||
| Total assets | $ | $ | |||||||||
| Liabilities and shareholders’ equity | |||||||||||
| Current liabilities: | |||||||||||
| Accounts payable and accrued liabilities | $ | $ | |||||||||
| Finance lease liabilities | |||||||||||
| Operating lease liabilities | |||||||||||
| Total current liabilities | |||||||||||
| Debt, long-term | |||||||||||
| Royalty financing agreement | |||||||||||
| Contingent consideration | |||||||||||
| Finance lease liabilities, long-term | |||||||||||
| Operating lease liabilities, long-term | |||||||||||
| Other long-term liabilities | |||||||||||
| Total liabilities | |||||||||||
| Shareholders’ equity: | |||||||||||
Common stock, $ | |||||||||||
| Additional paid-in capital | |||||||||||
| Accumulated deficit | ( | ( | |||||||||
| Accumulated other comprehensive (loss) income | ( | ||||||||||
| Total shareholders’ (deficit) equity | ( | ||||||||||
| Total liabilities and shareholders’ equity | $ | $ | |||||||||
See accompanying notes to the unaudited consolidated financial statements
3
INSMED INCORPORATED
Consolidated Statements of Comprehensive Loss (unaudited)
(in thousands, except per share data)
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| $ | $ | $ | $ | ||||||||||||||||||||
| Operating expenses: | |||||||||||||||||||||||
| Research and development | |||||||||||||||||||||||
| Selling, general and administrative | |||||||||||||||||||||||
| Amortization of intangible assets | |||||||||||||||||||||||
| Change in fair value of deferred and contingent consideration liabilities | ( | ( | |||||||||||||||||||||
| Total operating expenses | |||||||||||||||||||||||
| Operating loss | ( | ( | ( | ( | |||||||||||||||||||
| Investment income | |||||||||||||||||||||||
| Interest expense | ( | ( | ( | ( | |||||||||||||||||||
| Change in fair value of interest rate swap | ( | ||||||||||||||||||||||
| Other expense, net | ( | ( | ( | ( | |||||||||||||||||||
| Loss before income taxes | ( | ( | ( | ( | |||||||||||||||||||
| Provision for income taxes | |||||||||||||||||||||||
| Net loss | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||||||||
| Basic and diluted net loss per share | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||||||||
Weighted average basic and diluted common shares outstanding | |||||||||||||||||||||||
| Net loss | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||||||||
| Other comprehensive income (loss): | |||||||||||||||||||||||
| Foreign currency translation loss | ( | ( | ( | ( | |||||||||||||||||||
| Unrealized (loss) gain on marketable securities | ( | ( | ( | ||||||||||||||||||||
| Total comprehensive loss | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||||||||
See accompanying notes to the unaudited consolidated financial statements
4
INSMED INCORPORATED
Consolidated Statements of Shareholders' Equity (unaudited)
(in thousands)
| Common Stock | Additional Paid-in Capital | Accumulated Deficit | Accumulated Other Comprehensive Income (Loss) | Total | |||||||||||||||||||||||||||||||
| Shares | Amount | ||||||||||||||||||||||||||||||||||
| Balance at March 31, 2022 | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||
| Comprehensive loss: | |||||||||||||||||||||||||||||||||||
| Net loss | ( | ( | |||||||||||||||||||||||||||||||||
| Other comprehensive loss | ( | ( | |||||||||||||||||||||||||||||||||
| Exercise of stock options and ESPP shares | |||||||||||||||||||||||||||||||||||
| Issuance of common stock for vesting of RSUs | |||||||||||||||||||||||||||||||||||
| Stock compensation expense | |||||||||||||||||||||||||||||||||||
| Balance at June 30, 2022 | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||
| Balance at March 31, 2023 | $ | $ | $ | ( | $ | $ | ( | ||||||||||||||||||||||||||||
| Comprehensive loss: | |||||||||||||||||||||||||||||||||||
| Net loss | ( | ( | |||||||||||||||||||||||||||||||||
| Other comprehensive income | ( | ( | |||||||||||||||||||||||||||||||||
| Exercise of stock options and ESPP shares | |||||||||||||||||||||||||||||||||||
| Net proceeds from issuance of common stock | |||||||||||||||||||||||||||||||||||
| Issuance of common stock for vesting of RSUs | — | ||||||||||||||||||||||||||||||||||
| Issuance of common stock for asset acquisition | |||||||||||||||||||||||||||||||||||
| Stock compensation expense | |||||||||||||||||||||||||||||||||||
| Balance at June 30, 2023 | $ | $ | $ | ( | $ | ( | $ | ( | |||||||||||||||||||||||||||
See accompanying notes to the unaudited consolidated financial statements
5
INSMED INCORPORATED
Consolidated Statements of Shareholders' Equity (unaudited)
(in thousands)
| Common Stock | Additional Paid-in Capital | Accumulated Deficit | Accumulated Other Comprehensive Income (Loss) | Total | |||||||||||||||||||||||||||||||
| Shares | Amount | ||||||||||||||||||||||||||||||||||
| Balance at December 31, 2021 | $ | $ | $ | ( | $ | $ | |||||||||||||||||||||||||||||
Cumulative impact of | ( | ( | |||||||||||||||||||||||||||||||||
| Comprehensive loss: | |||||||||||||||||||||||||||||||||||
| Net loss | ( | ( | |||||||||||||||||||||||||||||||||
| Other comprehensive loss | ( | ( | |||||||||||||||||||||||||||||||||
| Exercise of stock options and ESPP shares | |||||||||||||||||||||||||||||||||||
| Issuance of common stock for vesting of RSUs | |||||||||||||||||||||||||||||||||||
| Stock compensation expense | |||||||||||||||||||||||||||||||||||
| Balance at June 30, 2022 | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||
| Balance at December 31, 2022 | $ | $ | $ | ( | $ | $ | |||||||||||||||||||||||||||||
| Comprehensive loss: | |||||||||||||||||||||||||||||||||||
| Net loss | ( | ( | |||||||||||||||||||||||||||||||||
| Other comprehensive income | ( | ( | |||||||||||||||||||||||||||||||||
| Exercise of stock options and ESPP shares | |||||||||||||||||||||||||||||||||||
| Net proceeds from issuance of common stock | |||||||||||||||||||||||||||||||||||
| Issuance of common stock for vesting of RSUs | |||||||||||||||||||||||||||||||||||
| Issuance of common stock for asset acquisition | |||||||||||||||||||||||||||||||||||
| Stock compensation expense | |||||||||||||||||||||||||||||||||||
| Balance at June 30, 2023 | $ | $ | $ | ( | $ | ( | $ | ( | |||||||||||||||||||||||||||
See accompanying notes to the unaudited consolidated financial statements
6
INSMED INCORPORATED
Consolidated Statements of Cash Flows (unaudited)
(in thousands)
| Six Months Ended June 30, | |||||||||||
| 2023 | 2022 | ||||||||||
| Operating activities | |||||||||||
| Net loss | $ | ( | $ | ( | |||||||
| Adjustments to reconcile net loss to net cash used in operating activities: | |||||||||||
| Depreciation | |||||||||||
| Amortization of intangible assets | |||||||||||
| Stock-based compensation expense | |||||||||||
| Amortization of debt issuance costs | |||||||||||
| Paid-in-kind interest capitalized | |||||||||||
| Royalty financing non-cash interest expense | |||||||||||
| Finance lease amortization expense | |||||||||||
| Non-cash operating lease expense | |||||||||||
| Change in fair value of deferred and contingent consideration liabilities | ( | ||||||||||
| Change in fair value of interest rate swap | |||||||||||
| Vertuis acquisition | |||||||||||
| Adrestia acquisition | |||||||||||
| Changes in operating assets and liabilities: | |||||||||||
| Accounts receivable | ( | ( | |||||||||
| Inventory | ( | ||||||||||
| Prepaid expenses and other current assets | ( | ||||||||||
| Other assets | ( | ( | |||||||||
| Accounts payable and accrued liabilities | ( | ||||||||||
| Other liabilities | ( | ( | |||||||||
| Net cash used in operating activities | ( | ( | |||||||||
| Investing activities | |||||||||||
| Purchase of fixed assets | ( | ( | |||||||||
| Purchase of marketable securities | ( | ( | |||||||||
| Cash acquired in asset acquisition | |||||||||||
| Maturities of marketable securities | |||||||||||
| Net cash used in investing activities | ( | ( | |||||||||
| Financing activities | |||||||||||
| Proceeds from exercise of stock options and ESPP | |||||||||||
| Proceeds from issuance of common stock, net | |||||||||||
| Payments of finance lease principal | ( | ( | |||||||||
| Payment of debt issuance costs | ( | ||||||||||
| Net cash provided by financing activities | |||||||||||
| Effect of exchange rates on cash and cash equivalents | ( | ( | |||||||||
| Net decrease in cash and cash equivalents | ( | ( | |||||||||
| Cash and cash equivalents at beginning of period | |||||||||||
| Cash and cash equivalents at end of period | $ | $ | |||||||||
| Supplemental disclosures of cash flow information: | |||||||||||
| Cash paid for interest | $ | $ | |||||||||
| Cash paid for income taxes | $ | $ | |||||||||
See accompanying notes to the unaudited consolidated financial statements
7
1. The Company and Basis of Presentation
Insmed is a global biopharmaceutical company on a mission to transform the lives of patients with serious and rare diseases. The Company's first commercial product, ARIKAYCE, is approved in the United States (US) as ARIKAYCE® (amikacin liposome inhalation suspension), in Europe as ARIKAYCE Liposomal 590 mg Nebuliser Dispersion and in Japan as ARIKAYCE inhalation 590mg (amikacin sulfate inhalation drug product). ARIKAYCE received accelerated approval in the US in September 2018 for the treatment of Mycobacterium avium complex (MAC) lung disease as part of a combination antibacterial drug regimen for adult patients with limited or no alternative treatment options in a refractory setting. In October 2020, the European Commission (EC) approved ARIKAYCE for the treatment of nontuberculous mycobacterial (NTM) lung infections caused by MAC in adults with limited treatment options who do not have cystic fibrosis (CF). In March 2021, Japan's Ministry of Health, Labour and Welfare (MHLW) approved ARIKAYCE for the treatment of patients with NTM lung disease caused by MAC who did not sufficiently respond to prior treatment with a multidrug regimen. NTM lung disease caused by MAC (which the Company refers to as MAC lung disease) is a rare and often chronic infection that can cause irreversible lung damage and can be fatal. The Company's clinical-stage pipeline includes brensocatib, treprostinil palmitil inhalation powder (TPIP) and early-stage research programs. Brensocatib is a small molecule, oral, reversible inhibitor of dipeptidyl peptidase 1 (DPP1), which the Company is developing for the treatment of patients with bronchiectasis, as well as other neutrophil-mediated diseases, including chronic rhinosinusitis without nasal polyps (CRSsNP). TPIP is an inhaled formulation of the treprostinil prodrug treprostinil palmitil which may offer a differentiated product profile for pulmonary hypertension associated with interstitial lung disease (PH-ILD) and pulmonary arterial hypertension (PAH). The Company is also advancing its early-stage research programs encompassing a wide range of technologies and modalities, including gene therapy, artificial intelligence-driven protein engineering, protein manufacturing, and synthetic rescue.
The Company was incorporated in the Commonwealth of Virginia on November 29, 1999 and its principal executive offices are located in Bridgewater, New Jersey. The Company has legal entities in the US, France, Germany, Ireland, Italy, the Netherlands, Switzerland, the United Kingdom (UK), and Japan.
The accompanying unaudited interim consolidated financial statements have been prepared pursuant to the rules and regulations for reporting on Form 10-Q. Accordingly, certain information and disclosures required by accounting principles generally accepted in the US for complete consolidated financial statements are not included herein. The unaudited interim consolidated financial statements should be read in conjunction with the audited consolidated financial statements and notes thereto included in the Company's Annual Report on Form 10-K for the year ended December 31, 2022.
The results of operations of any interim period are not necessarily indicative of the results of operations for the full year. The unaudited interim consolidated financial information presented herein reflects all normal adjustments that are, in the opinion of management, necessary for a fair statement of the financial position, results of operations and cash flows for the periods presented. All intercompany transactions and balances have been eliminated in consolidation.
The Company had $612.9 million in cash and cash equivalents and $304.9 million of marketable securities as of June 30, 2023 and reported a net loss of $404.6 million for the six months ended June 30, 2023. The Company has funded its operations through public offerings of equity securities, debt financings and revenue interest financings. The Company expects to continue to incur consolidated operating losses, including losses in its US and certain international entities, while funding research and development (R&D) activities for ARIKAYCE, brensocatib, TPIP and its other pipeline programs, continuing commercialization and regulatory activities for ARIKAYCE and pre-commercial, regulatory and, if approved, commercialization activities for brensocatib, and funding other general and administrative activities.
The Company expects its future cash requirements to be substantial. While the Company currently has sufficient funds to meet its financial needs for at least the next 12 months, the Company may raise additional capital in the future to fund its operations, its ongoing commercialization and clinical trial activities, and its future product candidates, and to develop, acquire, in-license or co-promote other products or product candidates, including those that address orphan or rare diseases. The source, timing and availability of any future financing or other transaction will depend principally upon continued progress in the Company’s commercial, regulatory and development activities. Any future financing will also be contingent upon market conditions. If the Company is unable to obtain sufficient additional funds when required, the Company may be forced to delay, restrict or eliminate all or a portion of its development programs or commercialization efforts.
8
2. Summary of Significant Accounting Policies
The Company’s complete listing of significant accounting policies is set forth in Note 2 of the notes to the consolidated financial statements in the Company's Annual Report on Form 10-K for the year ended December 31, 2022. Selected significant accounting policies are discussed in further detail below.
Concentration of Credit Risk - Financial instruments that potentially subject the Company to concentrations of credit risk consist primarily of cash and cash equivalents. The Company places its cash equivalents with high credit-quality financial institutions and may invest its short-term investments in US treasury securities, mutual funds and government agency bonds. The Company has established guidelines relative to credit ratings and maturities that seek to maintain safety and liquidity.
The Company is exposed to risks associated with extending credit to customers related to the sale of products. The Company does not require collateral to secure amounts due from its customers. The Company uses an expected loss methodology to calculate allowances for trade receivables. The Company's measurement of expected credit losses is based on relevant information about past events, including historical experience, current conditions, and reasonable and supportable forecasts that affect the collectability of the reported amount. The Company does not currently have a material allowance for uncollectible trade receivables. The following table presents the percentage of gross product revenue represented by the Company's three largest customers as of the six months ended June 30, 2023 and their respective percentages for the six months ended June 30, 2022.
| June 30, | |||||||||||||||||||||||
| 2023 | 2022 | ||||||||||||||||||||||
| Customer A | |||||||||||||||||||||||
| Customer B | |||||||||||||||||||||||
| Customer C | |||||||||||||||||||||||
The Company relies on third-party manufacturers and suppliers for manufacturing and supply of its products. The inability of the suppliers or manufacturers to fulfill supply requirements of the Company could materially impact future operating results. A change in the relationship with the suppliers or manufacturers, or an adverse change in their business, could materially impact future operating results.
Inventory and Cost of Product Revenues (excluding amortization of intangible assets) - Inventory is stated at the lower of cost and net realizable value and consists of raw materials, work-in-process and finished goods. The Company periodically reviews inventory for expiry and obsolescence and, if necessary, writes down accordingly. If quality specifications are not met during the manufacturing process, such inventory is written off to cost of product revenues (excluding amortization of intangible assets) in the period identified.
Cost of product revenues (excluding amortization of intangible assets) consist primarily of direct and indirect costs related to the manufacturing of ARIKAYCE sold, including third-party manufacturing costs, packaging services, freight, and allocation of overhead costs, in addition to royalty expenses and revenue-based milestone payments. Cost is determined using a standard cost method, which approximates actual cost, and assumes a first in, first out flow of goods. Inventory used for clinical development purposes is expensed to R&D expense when consumed. See Note 5 - Inventory for further details.
9
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
2. Summary of Significant Accounting Policies (Continued)
determination is required as to whether or not the Company has acquired inputs and processes that have the ability to create outputs, which would meet the requirements of a business.
If determined to be a business combination, the Company accounts for the transaction under the acquisition method of accounting as indicated in ASU 2017-01, Business Combinations (Topic 805): Clarifying the Definition of a Business, which requires the acquiring entity in a business combination to recognize the fair value of all assets acquired, liabilities assumed, and any non-controlling interest in the acquiree and establishes the acquisition date as the fair value measurement point. Accordingly, the Company recognizes assets acquired and liabilities assumed in business combinations, including contingent assets and liabilities, and non-controlling interest in the acquiree based on the fair value estimates as of the date of acquisition. In accordance with Accounting Standards Codification (ASC) 805, Business Combinations, the Company recognizes and measures goodwill as of the acquisition date, as the excess of the fair value of the consideration paid over the fair value of the identified net assets acquired.
The consideration for the Company’s business acquisitions may include future payments that are contingent upon the occurrence of a particular event or events. The obligations for such contingent consideration payments are recorded at fair value on the acquisition date. The contingent consideration obligations are then evaluated each reporting period. Changes in the fair value of contingent consideration, other than changes due to payments, are recognized as a gain or loss and recorded within change in the fair value of deferred and contingent consideration liabilities in the consolidated statements of comprehensive loss.
If determined to be an asset acquisition, the Company accounts for the transaction under ASC 805-50, which requires the acquiring entity to recognize assets acquired and liabilities assumed based on the cost to the acquiring entity on a relative fair value basis, which includes transaction costs in addition to consideration given. No gain or loss is recognized as of the date of acquisition unless the fair value of non-cash assets given as consideration differs from the assets’ carrying amounts on the acquiring entity’s books. Consideration transferred that is non-cash will be measured based on either the cost (which shall be measured based on the fair value of the consideration given) or the fair value of the assets acquired and liabilities assumed, whichever is more reliably measurable. Goodwill is not recognized in an asset acquisition and any excess consideration transferred over the fair value of the net assets acquired is allocated to the identifiable assets based on relative fair values. If the in-licensed agreement for IPR&D does not meet the definition of a business and the assets have not reached technological feasibility and therefore have no alternative future use, the Company expenses payments made under such license agreements as acquired IPR&D expense in its consolidated statement of comprehensive loss. Contingent consideration payments in asset acquisitions are recognized when the contingency is resolved and the consideration is paid or becomes payable (unless the contingent consideration meets the definition of a derivative, in which case the amount becomes part of the basis in the asset acquired). Upon recognition of the contingent consideration payment, the amount is included in the cost of the acquired asset or group of assets. See Note 16 - Acquisitions for further information.
10
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
2. Summary of Significant Accounting Policies (Continued)
Finite-lived Intangible Assets - Finite-lived intangible assets are measured at their respective fair values on the date they were recorded. The fair values assigned to the Company's intangible assets are based on reasonable estimates and assumptions given available facts and circumstances. See Note 6 - Intangibles, Net and Goodwill for further details.
Impairment Assessment - The Company reviews the recoverability of its finite-lived intangible assets and long-lived assets for indicators of impairments. Events or circumstances that may require an impairment assessment include negative clinical trial results, a significant decrease in the market price of the asset, or a significant adverse change in legal factors or the manner in which the asset is used. If such indicators are present, the Company assesses the recoverability of affected assets by determining if the carrying value of such assets is less than the sum of the undiscounted future cash flows of the assets. If such assets are found to not be recoverable, the Company measures the amount of the impairment by comparing the carrying value of the assets to the fair value of the assets.
Goodwill - Goodwill represents the amount of consideration paid in excess of the fair value of net assets acquired as a result of the Company’s business acquisitions accounted for using the acquisition method of accounting. Goodwill is not amortized and is subject to impairment testing at a reporting unit level on an annual basis or when a triggering event occurs that may indicate the carrying value of the goodwill is impaired. An entity is permitted to first assess qualitative factors to determine if a quantitative impairment test is necessary. Further testing is only required if the entity determines, based on the qualitative assessment, that it is more likely than not that the fair value of the reporting unit is less than its carrying amount. As of June 30, 2023 and December 31, 2022, the Company continues to operate as one
Leases - A lease is a contract, or part of a contract, that conveys the right to control the use of explicitly or implicitly identified property, plant or equipment in exchange for consideration. Control of an asset is conveyed to the Company if the Company obtains the right to obtain substantially all of the economic benefits of the asset or the right to direct the use of the asset. The Company recognizes right-of-use (ROU) assets and lease liabilities at the lease commencement date based on the present value of future, fixed lease payments over the term of the arrangement. ROU assets are amortized on a straight-line basis over the term of the lease or are amortized based on consumption, if this approach is more representative of the pattern in which benefit is expected to be derived from the underlying asset. Lease liabilities accrete to yield and are reduced at the time when the lease payment is payable to the vendor. Variable lease payments are recognized at the time when the event giving rise to the payment occurs and are recognized in the consolidated statements of comprehensive loss in the same line item as expenses arising from fixed lease payments.
Leases are measured at present value using the rate implicit in the lease or, if the implicit rate is not determinable, the lessee's implicit borrowing rate. As the implicit rate is not typically available, the Company uses its implicit borrowing rate based on the information available at the lease commencement date to determine the present value of future lease payments. The implicit borrowing rate approximates the rate the Company would pay to borrow on a collateralized basis over a similar term an amount equal to the lease payments. See Note 9 - Leases for further details.
Foreign Currency - The Company has operations in the US, France, Germany, Ireland, Italy, the Netherlands, Switzerland, the UK, and Japan. The results of the Company's non-US dollar based functional currency operations are translated to US dollars at the average exchange rates during the period. Assets and liabilities are translated at the exchange rate prevailing at the balance sheet date. Equity is translated at the prevailing exchange rate at the date of the equity transaction. Translation adjustments are included in shareholders' (deficit) equity, as a component of accumulated other comprehensive (loss) income.
The Company realizes foreign currency transaction gains and losses in the normal course of business based on movements in the applicable exchange rates. These gains and losses are included as a component of other expense, net.
Debt Issuance Costs - Debt issuance costs are amortized to interest expense using the effective interest rate method over the term of the debt. Unamortized debt issuance costs paid to the lender and third parties are reflected as a discount to the debt in the consolidated balance sheets. Unamortized debt issuance costs associated with extinguished debt are expensed in the period of the extinguishment.
Synthetic Royalty Financing Agreement - In October 2022, the Company entered into a revenue interest purchase agreement (the Royalty Financing Agreement) with OrbiMed Royalty & Credit Opportunities IV, LP (OrbiMed). The fair value of the Royalty Financing Agreement at the time of the transaction was based on the Company’s estimates of future royalties expected to be paid to OrbiMed over the life of the arrangement, which was determined using forecasts from market data sources, which are considered Level 3 inputs. This liability is being amortized using the effective interest method over the life
11
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
2. Summary of Significant Accounting Policies (Continued)
The following table sets forth the reconciliation of the weighted average number of common shares used to compute basic and diluted net loss per share for the three and six months ended June 30, 2023 and 2022:
| Three Months Ended June 30, 2022 | Six Months Ended June 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Numerator: | |||||||||||||||||||||||
| Net loss | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||||||||
| Denominator: | |||||||||||||||||||||||
| Weighted average common shares used in calculation of basic net loss per share: | |||||||||||||||||||||||
| Effect of dilutive securities: | |||||||||||||||||||||||
| Common stock options | |||||||||||||||||||||||
| RS and RSUs | |||||||||||||||||||||||
| PSUs | |||||||||||||||||||||||
| Convertible debt securities | |||||||||||||||||||||||
| Weighted average common shares outstanding used in calculation of diluted net loss per share | |||||||||||||||||||||||
| Net loss per share: | |||||||||||||||||||||||
| Basic and diluted | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||||||||
The following potentially dilutive securities have been excluded from the computations of diluted weighted average common shares outstanding as of June 30, 2023 and 2022, respectively, as their effect would have been anti-dilutive (in thousands):
June 30, | |||||||||||
| 2023 | 2022 | ||||||||||
| Common stock options | |||||||||||
| Unvested restricted stock and RSUs | |||||||||||
| PSUs | |||||||||||
| Convertible debt securities | |||||||||||
12
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
2. Summary of Significant Accounting Policies (Continued)
3. Fair Value Measurements
The Company categorizes its financial assets and liabilities measured and reported at fair value in the financial statements on a recurring basis based upon the level of judgment associated with the inputs used to measure their fair value. Hierarchical levels, which are directly related to the amount of subjectivity associated with the inputs used to determine the fair value of financial assets and liabilities, are as follows:
•Level 1 — Inputs are unadjusted, quoted prices in active markets for identical assets or liabilities at the measurement date.
•Level 2 — Inputs (other than quoted prices included in Level 1) are either directly or indirectly observable for the assets or liability through correlation with market data at the measurement date and for the duration of the instrument’s anticipated life.
•Level 3 — Inputs reflect management’s best estimate of what market participants would use in pricing the asset or liability at the measurement date. Consideration is given to the risk inherent in the valuation technique and the risk inherent in the inputs to the model.
Each major category of financial assets and liabilities measured at fair value on a recurring basis is categorized based upon the lowest level of significant input to the valuations. The fair value hierarchy also requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. Financial instruments in Level 1 generally include US treasuries and mutual funds listed in active markets. The Company's cash and cash equivalents permit daily redemption and the fair values of these investments are based upon the quoted prices in active markets provided by the holding financial institutions.
The following table shows assets and liabilities that are measured at fair value on a recurring basis and their carrying value (in millions):
June 30, 2023 | |||||||||||||||||||||||
| Fair Value | |||||||||||||||||||||||
| Carrying Value | Level 1 | Level 2 | Level 3 | ||||||||||||||||||||
| Assets | |||||||||||||||||||||||
| Cash and cash equivalents | $ | $ | $ | $ | |||||||||||||||||||
| Marketable securities | $ | $ | $ | $ | |||||||||||||||||||
| Collateral for interest rate swap | $ | $ | $ | $ | |||||||||||||||||||
| Liabilities | |||||||||||||||||||||||
| Interest rate swap | $ | $ | $ | $ | |||||||||||||||||||
| Deferred consideration | $ | $ | $ | $ | |||||||||||||||||||
| Contingent consideration | $ | $ | $ | $ | |||||||||||||||||||
13
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
3. Fair Value Measurements (Continued)
December 31, 2022 | |||||||||||||||||||||||
| Fair Value | |||||||||||||||||||||||
| Carrying Value | Level 1 | Level 2 | Level 3 | ||||||||||||||||||||
| Assets | |||||||||||||||||||||||
| Cash and cash equivalents | $ | $ | $ | $ | |||||||||||||||||||
| Marketable securities | $ | $ | $ | $ | |||||||||||||||||||
| Collateral for interest rate swap | $ | $ | $ | $ | |||||||||||||||||||
| Liabilities | |||||||||||||||||||||||
| Interest rate swap | $ | $ | $ | $ | |||||||||||||||||||
| Deferred consideration | $ | $ | $ | $ | |||||||||||||||||||
| Contingent consideration | $ | $ | $ | $ | |||||||||||||||||||
The Company recognizes transfers between levels within the fair value hierarchy, if any, at the end of each quarter. The collateral for interest rate swap and the interest rate swap are recorded in other assets and accounts payable and accrued liabilities, respectively, in the consolidated balance sheet as of June 30, 2023 and December 31, 2022. The collateral for interest rate swap is cash, a Level 1 asset. The interest rate swap is a Level 2 liability as it uses observable inputs other than quoted market prices in an active market. There were no transfers in or out of Level 1, Level 2 or Level 3 during the three and six months ended June 30, 2023.
As of June 30, 2023, the Company held $304.9 million of current available-for-sale securities, net of an unrealized gain of $0.3 million recorded in accumulated other comprehensive (loss) income. Marketable securities maturing in one year or less are classified as current assets and marketable securities maturing in more than one year are classified as non-current assets.
The Company reviews the status of each security quarterly to determine whether an other-than-temporary impairment has occurred. In making its determination, the Company considers a number of factors, including: (1) the significance of the decline; (2) whether the security was rated below investment grade; (3) failure of the issuer to make scheduled interest or principal payments; and (4) the Company's ability and intent to retain the investment for a sufficient period of time for it to recover. The Company has determined that there were no other-than-temporary impairments during the three and six months ended June 30, 2023.
Deferred Consideration
The deferred consideration arose from the acquisitions of Motus Biosciences, Inc. (Motus) and AlgaeneX, Inc. (AlgaeneX) (the Business Acquisition) in August 2021. The Company is obligated to issue to Motus equityholders an aggregate of 184,433 171,427 shares of the Company's common stock, after certain reductions. A valuation of the deferred consideration is performed quarterly with gains and losses included within change in fair value of deferred and contingent consideration liabilities in the consolidated statements of comprehensive loss. As the deferred consideration is settled in shares, there is no discount rate applied in the fair value calculation.
The deferred consideration has been classified as a Level 2 recurring liability as its valuation utilizes an input, the Insmed share price, which is a directly observable input at the measurement date and for the duration of the liabilities' anticipated lives. Deferred consideration expected to be settled within 12 months or less is classified as a current liability within accounts payable and accrued liabilities. As of June 30, 2023, the fair value of deferred consideration included in accounts payable and accrued liabilities was $3.9 million. Deferred consideration expected to be settled in more than 12 months is classified as a non-current liability within other long-term liabilities. As of June 30, 2023, the fair value of deferred consideration included in other long-term liabilities was $3.9 million.
14
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
3. Fair Value Measurements (Continued)
Fair Value as of June 30, 2023 (in millions) | Observable Input | Input Value | |||||||||
| Deferred consideration | $ | Insmed share price as of June 30, 2023 | $ | ||||||||
Contingent Consideration
The contingent consideration liabilities arose from the Business Acquisition in August 2021 (Note 16). The contingent consideration liabilities consist of developmental and regulatory milestones, a priority review voucher milestone and net sales milestones. Upon the achievement of certain development and regulatory milestone events, the Company is obligated to issue to Motus equityholders up to 5,348,572 shares in the aggregate and AlgaeneX equityholders up to 368,867 shares in the aggregate. The fair value of the development and regulatory milestones are estimated utilizing a probability-adjusted approach. At June 30, 2023, the weighted average probability of success was 42 %. The development and regulatory milestones will be settled in shares of the Company's common stock. As such, there is no discount rate applied in the fair value calculation.
If the Company were to receive a priority review voucher, the Company is obligated to pay to the Motus equityholders a portion of the value of the priority review voucher, subject to certain reductions. The potential payout will be either 50 % of the after tax net proceeds received by the Company from a sale of the priority review voucher or 50 % of the average of the sales prices for the last three publicly disclosed priority review voucher sales, less certain adjustments. The fair value of the priority review voucher milestone is estimated utilizing a probability-adjusted discounted cash flow approach. This obligation will be settled in cash.
The contingent consideration liabilities for net sales milestones were valued using an option pricing model with Monte Carlo simulation. As of June 30, 2023, the fair value of these net sales milestones were deemed immaterial to the overall fair value of the contingent consideration.
The contingent consideration liabilities have been classified as a Level 3 recurring liability as its valuation requires substantial judgment and estimation of factors that are not currently observable in the market. If different assumptions were used for the inputs to the valuation approach, the estimated fair value could be significantly different than the fair value the Company determined. Contingent consideration expected to be settled within 12 months or less is classified as a current liability within accounts payable and accrued liabilities. As of June 30, 2023, the fair value of contingent consideration included in accounts payable and accrued liabilities was $15.3 million. Contingent consideration expected to be settled in more than twelve months is classified as a non-current liability. As of June 30, 2023, the fair value of non-current contingent consideration was $46.4 million.
A valuation of the contingent consideration liabilities is performed quarterly with gains and losses included within change in fair value of contingent consideration liabilities in the consolidated statements of comprehensive loss. The following significant unobservable inputs were used in the valuation of the development and regulatory milestones and the priority review voucher milestone as of June 30, 2023:
Fair Value as of June 30, 2023 (in millions) | Valuation Technique | Unobservable Inputs | Values | |||||||||||
| Development and regulatory milestones | $ | Probability-adjusted | Probabilities of success | |||||||||||
| Priority review voucher milestone | $ | Probability-adjusted discounted cash flow | Probability of success | |||||||||||
| Discount rate | ||||||||||||||
The following table is a summary of the changes in the fair value of the Company's valuations for the deferred and contingent consideration liabilities for the six months ended June 30, 2023 and 2022 (in thousands):
15
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
3. Fair Value Measurements (Continued)
| Deferred Consideration (Level 2 Liabilities) | Contingent Consideration (Level 3 Liabilities) | ||||||||||
| Balance as of December 31, 2021 | $ | $ | |||||||||
| Additions | |||||||||||
| Change in Fair Value | ( | ( | |||||||||
| Payments | |||||||||||
| Balance as of June 30, 2022 | $ | $ | |||||||||
| Balance as of December 31, 2022 | $ | $ | |||||||||
| Additions | |||||||||||
| Change in Fair Value | |||||||||||
| Payments | |||||||||||
| Balance as of June 30, 2023 | $ | $ | |||||||||
Convertible Notes
The fair value of the convertible notes, which differs from their carrying value, is influenced by interest rates, the Company's stock price and stock price volatility (collectively, the Current Market Factors), and is determined by prices for the convertible notes observed in market trading which are Level 2 inputs.
The estimated fair value of the liability component of the Company's 0.75 % convertible senior notes due 2028 (the 2028 Convertible Notes) (categorized as a Level 2 liability for fair value measurement purposes) as of June 30, 2023 was $472.2 million, determined using Current Market Factors and the ability of the Company to obtain debt on comparable terms to the 2028 Convertible Notes.
The estimated fair value of the liability component of the Company's 1.75 % convertible senior notes due 2025 (the 2025 Convertible Notes) (categorized as a Level 2 liability for fair value measurement purposes) as of June 30, 2023 was $214.9 million, determined using Current Market Factors, and the ability of the Company to obtain debt on comparable terms to the 2025 Convertible Notes. See Note 10 - Debt for further details on the Company's convertible notes.
4. Product Revenues, Net
In accordance with ASC 606, Revenue from Contracts with Customers, the Company recognizes revenue when a customer obtains control of promised goods or services, in an amount that reflects the consideration the Company expects to receive in exchange for the goods or services provided. To determine revenue recognition for arrangements within the scope of ASC 606, the Company performs the following five steps: (1) identify the contracts with a customer; (2) identify the performance obligations in the contract; (3) determine the transaction price; (4) allocate the transaction price to the performance obligations in the contract; and (5) recognize revenue when or as the entity satisfies a performance obligation. At contract inception, the Company assesses the goods or services promised within each contract to determine which are performance obligations and to assess whether each promised good or service is distinct. The Company then recognizes as revenue the amount of the transaction price that is allocated to the respective performance obligation when or as the performance obligation is satisfied. For all contracts that fall into the scope of ASC 606, the Company has identified one performance obligation: the sale of ARIKAYCE to its customers. The Company has not incurred or capitalized any incremental costs associated with obtaining contracts with customers.
Product revenues, net consist of net sales of ARIKAYCE. The Company's customers in the US include specialty pharmacies and specialty distributors. In December 2020, the Company began recognizing product revenue from commercial sales of ARIKAYCE in Europe. In July 2021, the Company began recognizing product revenue from commercial sales of ARIKAYCE in Japan. Globally, product revenues are recognized once the Company performs and satisfies all five steps of the revenue recognition criteria mentioned above.
16
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
4. Product Revenues, Net (Continued)
| Three Months Ended June 30, 2022 | Six Months Ended June 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| US | $ | $ | $ | $ | |||||||||||||||||||
| Japan | |||||||||||||||||||||||
| Europe and rest of world | |||||||||||||||||||||||
| Total product revenues, net | $ | $ | $ | $ | |||||||||||||||||||
Revenue is recorded at net selling price (transaction price), which includes estimates of variable consideration for which reserves are established for (a) customer credits, such as invoice discounts for prompt pay, (b) estimated government rebates, such as Medicaid and Medicare Part D reimbursements, and estimated managed care rebates, (c) estimated chargebacks, and (d) estimated costs of co-payment assistance. These reserves are based on the amounts earned or to be claimed on the related sales and are classified as reductions of accounts receivable (prompt pay discounts and chargebacks), prepaid expenses (co-payment assistance), or as a current liability (rebates). Where appropriate, these estimates take into consideration a range of possible outcomes which are probability-weighted for relevant factors such as the Company's historical experience, current contractual and statutory requirements, and forecasted customer buying and payment patterns. Overall, these reserves reflect the Company's best estimates of the amount of consideration to which it is entitled based on the terms of the applicable contract. The amount of variable consideration included in the transaction price may be constrained and is included in the net sales price only to the extent that it is probable that a significant reversal in the amount of the cumulative revenue recognized will not occur in a future period. Actual amounts of consideration ultimately received may differ from the Company's estimates. If actual results in the future vary from estimates, the Company adjusts these estimates, which would affect net product revenue and earnings in the period such variances become known.
Customer credits: Certain of the Company's customers are offered various forms of consideration, including prompt payment discounts. The payment terms for sales to specialty pharmacies and specialty distributors for prompt payment discounts are based on contractual rates agreed with the respective specialty pharmacies and distributors. The Company anticipates that its customers will earn these discounts and, therefore, deducts the full amount of these discounts from total gross product revenues at the time such revenues are recognized.
Rebates: The Company contracts with certain government agencies and managed care organizations, or collectively, third-party payors, so that ARIKAYCE will be eligible for purchase by, or partial or full reimbursement from, such third-party payors. The Company estimates the rebates it will provide to third-party payors and deducts these estimated amounts from total gross product revenues at the time the revenues are recognized. These reserves are recorded in the same period in which the revenue is recognized, resulting in a reduction of product revenue and the establishment of a current liability. The current liability is included in accounts payable and accrued liabilities on the consolidated balance sheets. The Company estimates the rebates that it will provide to third-party payors based upon (i) the Company's contracts with these third-party payors, (ii) the government mandated discounts applicable to government-funded programs, (iii) a range of possible outcomes that are probability-weighted for the estimated payor mix, and (iv) information obtained from the Company's specialty pharmacies.
Chargebacks: Chargebacks are discounts that occur when certain contracted customers, currently public health service institutions and federal government entities purchasing via the Federal Supply Schedule, purchase directly from the Company's specialty distributor. Contracted customers generally purchase the product at a discounted price and the specialty distributor, in turn, charges back to the Company the difference between the price the specialty distributor initially paid and the discounted price paid by the contracted customers. The Company estimates chargebacks provided to the specialty distributor and deducts these estimated amounts from gross product revenues, and from accounts receivable, at the time revenues are recognized.
Co-payment assistance: Patients who have commercial insurance and meet certain eligibility requirements may receive co-payment assistance. Based upon the terms of the program and information regarding programs provided for similar specialty pharmaceutical products, the Company estimates the average co-pay mitigation amounts and the percentage of patients that it expects to participate in the program in order to establish accruals for co-payment assistance. These reserves are recorded in the same period in which the related revenue is recognized, resulting in a reduction of product revenue. The Company adjusts its accruals for co-pay assistance based on actual redemption activity and estimates of future redemptions related to sales in the current period.
If any, or all, of the Company's actual experience varies from its estimates, the Company may need to adjust prior period accruals, affecting revenue in the period of adjustment.
17
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
4. Product Revenues, Net (Continued)
5. Inventory
As of June 30, 2023 and December 31, 2022, the Company's inventory balance consists of the following (in thousands):
| June 30, 2023 | December 31, 2022 | ||||||||||
| Raw materials | $ | $ | |||||||||
| Work-in-process | |||||||||||
| Finished goods | |||||||||||
| $ | $ | ||||||||||
The Company has not recorded any significant inventory write-downs. The Company currently uses a limited number of third-party contract manufacturing organizations (CMOs) to produce its inventory.
6. Intangibles, Net and Goodwill
Intangibles, Net
Finite-lived Intangible Assets
As of June 30, 2023, the Company's finite-lived intangible assets consisted of acquired ARIKAYCE R&D and the milestones paid to PARI for the license to use Lamira for the delivery of ARIKAYCE to patients as a result of the FDA and EC approvals of ARIKAYCE in September 2018 and October 2020, respectively. The Company began amortizing its acquired ARIKAYCE R&D and PARI milestones intangible assets in October 2018, over ARIKAYCE's initial regulatory exclusivity period of 12 years. Amortization of these assets during each of the next five years is estimated to be approximately $5.1
Indefinite-lived Intangible Assets
As of June 30, 2023, the Company's indefinite-lived intangible assets consisted of acquired IPR&D from the Business Acquisition (Note 16). Indefinite-lived intangible assets are not amortized.
A rollforward of the Company's intangible assets for the six months ended June 30, 2023 and June 30, 2022 is as follows (in thousands):
| Intangible Asset | December 31, 2022 | Additions | Amortization | June 30, 2023 | ||||||||||||||||||||||
| Acquired ARIKAYCE R&D | $ | $ | $ | ( | $ | |||||||||||||||||||||
| Acquired IPR&D | ||||||||||||||||||||||||||
| PARI milestones | ( | |||||||||||||||||||||||||
| $ | $ | $ | ( | $ | ||||||||||||||||||||||
| Intangible Asset | December 31, 2021 | Additions | Amortization | June 30, 2022 | ||||||||||||||||||||||
| Acquired ARIKAYCE R&D | $ | $ | $ | ( | $ | |||||||||||||||||||||
| Acquired IPR&D | ||||||||||||||||||||||||||
| PARI milestones | ( | |||||||||||||||||||||||||
| $ | $ | $ | ( | $ | ||||||||||||||||||||||
Goodwill
18
7. Fixed Assets, Net
Fixed assets are stated at cost and depreciated using the straight-line method, based on useful lives as follows (in thousands):
| Estimated Useful Life (years) | As of | |||||||||||||||||||
| Asset Description | June 30, 2023 | December 31, 2022 | ||||||||||||||||||
| Lab equipment | $ | $ | ||||||||||||||||||
| Furniture and fixtures | ||||||||||||||||||||
| Computer hardware and software | ||||||||||||||||||||
| Office equipment | ||||||||||||||||||||
| Manufacturing equipment | ||||||||||||||||||||
| Leasehold improvements | ||||||||||||||||||||
| Construction in progress | — | |||||||||||||||||||
| Less: accumulated depreciation | ( | ( | ||||||||||||||||||
| $ | $ | |||||||||||||||||||
8. Accounts Payable and Accrued Liabilities
Accounts payable and accrued liabilities consist of the following (in thousands):
| As of | |||||||||||
| June 30, 2023 | December 31, 2022 | ||||||||||
| Accounts payable and other accrued operating expenses | $ | $ | |||||||||
| Accrued clinical trial expenses | |||||||||||
| Accrued professional fees | |||||||||||
| Accrued technical operation expenses | |||||||||||
| Accrued compensation and employee related costs | |||||||||||
| Accrued royalty and milestones payable | |||||||||||
| Accrued interest payable | |||||||||||
| Royalty revenue payable | |||||||||||
| Accrued sales allowances and related costs | |||||||||||
| Accrued France ATU reimbursement payable | |||||||||||
| Deferred and contingent consideration from Business Acquisition | |||||||||||
| Other accrued liabilities | |||||||||||
| $ | $ | ||||||||||
9. Leases
The Company's lease portfolio consists primarily of office and laboratory space, manufacturing facilities, research equipment and fleet vehicles. All of the Company's leases are classified as operating leases, except for the Company's leases of its corporate headquarters and a research facility in San Diego, which are classified as finance leases. The terms of the Company's lease agreements that have commenced range from less than one year to ten years, ten months . In its assessment of the term of each such lease, the Company has not included any options to extend or terminate the lease due to the absence of economic incentives in its lease agreements. Leases that qualify for treatment as a short-term lease are expensed as incurred. These short-term leases are not material to the Company's financial position. Furthermore, the Company does not separate lease
19
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
9. Leases (Continued)
and non-lease components for all classes of underlying assets. The Company's leases do not contain residual value guarantees and it does not sublease any of its leased assets.
The Company outsources its manufacturing operations to CMOs. Upon review of the agreements with its CMOs, the Company determined that these contracts contain embedded leases for dedicated manufacturing facilities. The Company obtains substantially all of the economic benefits from the use of the manufacturing facilities, the Company has the right to direct how and for what purpose the facility is used throughout the period of use, and the supplier does not have the right to change the operating instructions of the facility. The operating lease right-of-use assets and corresponding lease liabilities associated with the manufacturing facilities is the sum of the minimum guarantees over the life of the production contracts.
The Company also records variable consideration for variable lease payments in excess of fixed fees or minimum guarantees. Variable consideration related to the Company's leasing arrangements was $4.1 million and $1.5 million for the three months ended June 30, 2023 and 2022, respectively, and $4.2 million and $1.6 million for the six months ended June 30, 2023 and 2022, respectively. Variable costs related to CMO manufacturing agreements are direct costs related to the manufacturing of ARIKAYCE and are capitalized within inventory in the Company's consolidated balance sheet, while the variable costs related to other leasing arrangements, not related to the manufacturing of ARIKAYCE, have been classified within operating expenses in the Company's consolidated statements of comprehensive loss.
The table below summarizes the supplemental non-cash disclosures of the Company's leases included in its consolidated financial statements (in thousands):
| Three Months Ended June 30, | Six Months Ended June 30, | |||||||||||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | |||||||||||||||||||||||||||||
| Finance right-of-use assets obtained in exchange for lease obligations | $ | $ | $ | $ | ||||||||||||||||||||||||||||
| Operating right-of-use assets obtained in exchange for lease obligations | $ | $ | $ | $ | ||||||||||||||||||||||||||||
In addition to the Company's lease agreements that have previously commenced and are reflected in the consolidated financial statements, the Company has entered into additional lease agreements that have not yet commenced. The Company entered into certain agreements with Patheon UK Limited (Patheon) related to increasing its long-term production capacity for ARIKAYCE commercial inventory. The Company has determined that these agreements with Patheon contain an embedded lease for the manufacturing facility and the specialized equipment contained therein. Costs of $44.5 million and $40.7 million incurred by the Company under these additional agreements have been classified within other assets in the Company's consolidated balance sheet as of June 30, 2023 and December 31, 2022, respectively. Upon the commencement date, prepaid costs and minimum guarantees specified in the agreement will be combined to establish an operating lease ROU asset and operating lease liability.
10. Debt
Debt, long-term consists of the following commitments as of June 30, 2023 and December 31, 2022 (in thousands):
| As of | ||||||||||||||
| June 30, 2023 | December 31, 2022 | |||||||||||||
| Convertible notes | $ | $ | ||||||||||||
| Term Loan | ||||||||||||||
| Debt, long-term | $ | $ | ||||||||||||
Convertible Notes
In May 2021, the Company completed an underwritten public offering of the 2028 Convertible Notes, in which the Company sold $575.0 million aggregate principal amount of the 2028 Convertible Notes, including the exercise in full of the underwriters' option to purchase an additional $75.0 million in aggregate principal amount of 2028 Convertible Notes. The Company's net proceeds from the offering, after deducting underwriting discounts and commissions and other offering expenses of $15.7 million, were approximately $559.3 million. The 2028 Convertible Notes bear interest payable semiannually in arrears
20
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
10. Debt (Continued)
on June 1 and December 1 of each year, beginning on December 1, 2021. The 2028 Convertible Notes mature on June 1, 2028, unless earlier converted, redeemed, or repurchased.
In January 2018, the Company completed an underwritten public offering of the 2025 Convertible Notes, in which the Company sold $450.0 million aggregate principal amount of the 2025 Convertible Notes, including the exercise in full of the underwriters' option to purchase an additional $50.0 million in aggregate principal amount of 2025 Convertible Notes. The Company's net proceeds from the offering, after deducting underwriting discounts and commissions and other offering expenses of $14.2 million, were approximately $435.8 million. The 2025 Convertible Notes bear interest payable semiannually in arrears on January 15 and July 15 of each year, beginning on July 15, 2018. The 2025 Convertible Notes mature on January 15, 2025, unless earlier converted, redeemed, or repurchased.
A portion of the net proceeds from the 2028 Convertible Notes was used to repurchase $225.0 million of the Company's outstanding 2025 Convertible Notes. The Company recorded a loss on early extinguishment of debt of $17.7 million, primarily related to the premium paid on extinguishment of a portion the 2025 Convertible Notes.
On or after October 15, 2024, until the close of business on the second scheduled trading day immediately preceding January 15, 2025, holders may convert their 2025 Convertible Notes at any time. The initial conversion rate for the 2025 Convertible Notes is 25.5384 shares of common stock per $1,000 principal amount of 2025 Convertible Notes (equivalent to an initial conversion price of approximately $39.16 per share of common stock). On or after March 1, 2028, until the close of business on the second scheduled trading day immediately preceding June 1, 2028, holders may convert their 2028 Convertible Notes at any time. The initial conversion rate for the 2028 Convertible Notes is 30.7692 shares of common stock per $1,000 principal amount of 2028 Convertible Notes (equivalent to an initial conversion price of approximately $32.50 per share of common stock). Upon conversion of either the 2025 Convertible Notes or the 2028 Convertible Notes, holders may receive cash, shares of the Company's common stock or a combination of cash and shares of the Company's common stock, at the Company's option. The conversion rates will be subject to adjustment in some events but will not be adjusted for any accrued and unpaid interest.
Holders may convert their 2025 Convertible Notes prior to October 15, 2024 or their 2028 Convertible Notes prior to March 1, 2028, only under the following circumstances, subject to the conditions set forth in the applicable indenture: (i) during the five five 98 45 10 10 30 20 30 130
21
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
10. Debt (Continued)
which the redemption price is paid. To date, there have not been any holder-initiated redemption requests of either series of convertible notes.
Each series of convertible notes can be settled in cash, common stock, or a combination of cash and common stock at the Company's option, and thus, the Company determined the embedded conversion options in both series of convertible notes are not required to be separately accounted for as a derivative. However, since the convertible notes are within the scope of the accounting guidance for cash convertible instruments, the Company is required to separate each series of convertible notes into liability and equity components. The carrying amount of the liability component of each series of convertible notes as of the date of issuance was calculated by measuring the fair value of a similar liability that did not have an associated equity component. The fair value was based on data from readily available pricing sources that utilize market observable inputs and other characteristics for similar types of instruments. The carrying amount of the equity component representing the embedded conversion option for each series of convertible notes was determined by deducting the fair value of the liability component from the gross proceeds of the applicable convertible notes. The excess of the principal amount of the liability component over its carrying amount is amortized to interest expense over the expected life of a similar liability that does not have an associated equity component using the effective interest method. The equity component is not remeasured as long as it continues to meet the conditions for equity classification in the accounting guidance for contracts in an entity’s own equity. The fair value of the liability component of the 2025 Convertible Notes on the date of issuance was estimated at $309.1 million using an effective interest rate of 7.6 % and, accordingly, the residual equity component on the date of issuance was $140.9 million. The fair value of the liability component of the 2028 Convertible Notes on the date of issuance was estimated at $371.6 million using an effective interest rate of 7.1 % and, accordingly, the residual equity component on the date of issuance was $203.4 million. The respective discounts were amortized to interest expense over the term of the applicable series of convertible notes through December 31, 2021, prior to the adoption of ASU 2020-06. The 2025 Convertible Notes and 2028 Convertible Notes have remaining terms of approximately 1.54 years and 4.92 years, respectively.
The $563.8 million carrying value of the 2028 Convertible Notes as of June 30, 2023 excludes $11.2 million of unamortized debt issuance costs. The $223.4 million carrying value of the 2025 Convertible Notes as of June 30, 2023 excludes $1.6 million of unamortized debt issuance costs. The following table presents the carrying value of the Company's convertible notes balance (in thousands):
| As of | |||||||||||
| June 30, 2023 | December 31, 2022 | ||||||||||
| Face value of outstanding convertible notes | $ | $ | |||||||||
| Debt issuance costs, unamortized | ( | ( | |||||||||
| Convertible notes | $ | $ | |||||||||
Secured Senior Term Loan
In October 2022, the Company entered into a $350 million senior secured term loan agreement with Pharmakon Advisors LP, manager of the BioPharma Credit funds (the Term Loan). The Term Loan matures on October 19, 2027 and bears interest at a rate based upon the secured overnight financing rate (SOFR), subject to a SOFR floor of 2.5 %, in addition to a margin of 7.75 % per annum. Up to 50 % of the interest payable during the first 24 months from the closing of the Term Loan may be paid-in-kind at the Company's election. If elected, paid-in-kind interest will be capitalized and added to the principal amount of the Term Loan. The Term Loan, including the paid-in-kind interest, will be repaid in eight equal quarterly payments starting in the 13th quarter following the closing of the Term Loan (i.e., the quarter ending March 31, 2026), except that the repayment start date may be extended at the Company's option for an additional four quarters, so that repayments start in the 17th quarter following the closing of the Term Loan, subject to the achievement of specified ARIKAYCE data thresholds and certain other conditions. During the six months ended June 30, 2023, paid-in-kind interest capitalized was $11.2 million. Net proceeds from the Term Loan, after deducting the lenders fees and deal expenses of $15.2 million, were $334.8 million.
22
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
10. Debt (Continued)
| As of | ||||||||||||||||||||
| June 30, 2023 | December 31, 2022 | |||||||||||||||||||
| Original Term Loan balance | $ | $ | ||||||||||||||||||
| Paid-in-kind interest capitalized | ||||||||||||||||||||
| Term Loan issuance costs, unamortized | ( | ( | ||||||||||||||||||
| Term Loan | $ | $ | ||||||||||||||||||
As of June 30, 2023, future principal repayments of debt for each of the years through maturity were as follows (in thousands):
| Year Ending December 31: | |||||
| 2023 | $ | ||||
| 2024 | |||||
| 2025 | |||||
| 2026 | |||||
| 2027 | |||||
| 2028 and thereafter | |||||
| $ | |||||
Interest Expense
Interest expense related to debt and finance leases for the three and six months ended June 30, 2023 and 2022 is as follows (in thousands):
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Convertible debt contractual interest expense | $ | $ | $ | $ | |||||||||||||||||||
| Term Loan contractual interest expense | |||||||||||||||||||||||
| Royalty Financing Agreement interest expense | |||||||||||||||||||||||
| Amortization of debt issuance costs | |||||||||||||||||||||||
| Swap interest income | ( | ( | |||||||||||||||||||||
| Total debt interest expense | |||||||||||||||||||||||
| Finance lease interest expense | |||||||||||||||||||||||
| Total interest expense | $ | $ | $ | $ | |||||||||||||||||||
11. Royalty Financing Agreement
In October 2022, the Company entered into the Royalty Financing Agreement with OrbiMed. Under the Royalty Financing Agreement, OrbiMed paid the Company $150 million in exchange for the right to receive, on a quarterly basis, royalties in an amount equal to 4 % of ARIKAYCE global net sales prior to September 1, 2025 and 4.5 % of ARIKAYCE global net sales on or after September 1, 2025, as well as 0.75 % of brensocatib global net sales, if approved (the Revenue Interest Payments). In the event that OrbiMed has not received aggregate Revenue Interest Payments of at least $150 million on or prior to March 31, 2028, the Company must make a one-time payment to OrbiMed for the difference between the $150 million and the aggregated Revenue Interest Payments that have been paid. In addition, the royalty rate for ARIKAYCE will be increased beginning March 31, 2028 to the rate which would have resulted in aggregate Revenue Interest Payments as of March 31, 2028 equaling $150 million. The total Revenue Interest Payments payable by us to OrbiMed are capped at 1.8 x of the purchase price or up to a maximum of 1.9 x of the purchase price under certain conditions. Net proceeds from the Royalty Financing Agreement, after deducting the lenders fees and deal expenses of $3.8 million were, $146.2 million.
The fair value of the Royalty Financing Agreement at the time of the transaction was based on the Company’s estimates of future royalties expected to be paid to OrbiMed over the life of the arrangement, which was determined using
23
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
11. Royalty Financing Agreement (Continued)
forecasts from market data sources, which are considered Level 3 inputs. This liability is being amortized using the effective interest method over the life of the arrangement, in accordance ASC 470, Debt and ASC 835, Interest. The initial annual effective interest rate was determined to be 12.4 %. The Company is utilizing the prospective method to account for subsequent changes in the estimated future payments to be made to OrbiMed and updates the effective interest rate on a quarterly basis.
The following table shows the activity within the liability account for the six month period ended June 30, 2023 and year ended December 31, 2022 (in thousands):
| Six Months Ended June 30, 2023 | Twelve Months Ended December 31, 2022 | |||||||||||||
| Royalty financing agreement liability - beginning balance | $ | $ | ||||||||||||
| Revenue Interest Payments paid and payable | ( | ( | ||||||||||||
| Interest expense recognized | ||||||||||||||
| Royalty financing agreement liability - ending balance | $ | $ | ||||||||||||
| Royalty financing issuance costs: | ||||||||||||||
| Royalty issuance costs, unamortized - beginning balance | $ | ( | $ | ( | ||||||||||
| Amortization of issuance costs | ||||||||||||||
| Other | ( | |||||||||||||
| Deferred issuance costs, unamortized - ending balance | $ | ( | $ | ( | ||||||||||
| Royalty Financing Agreement | $ | $ | ||||||||||||
The current liability recorded in connection with the royalty financing agreement was $3.1 million and $2.1 million as of June 30, 2023 and December 31, 2022, respectively, which was recorded within accounts payable and accrued expenses on the consolidated balance sheet. The current liability balance as of June 30, 2023 and December 31, 2022 is attributable to Revenue Interest Payments not yet paid. Non-cash interest expense is recorded within interest expense in the consolidated statements of comprehensive loss.
12. Shareholders' Equity
Common Stock — As of June 30, 2023, the Company had 500,000,000 shares of common stock authorized with a par value of $0.01 per share and 142,750,463 21,998,934 shares of common stock for issuance upon the exercise of outstanding stock options, 2,828,160 shares of common stock for issuance upon the vesting of RSUs and 666,382 shares for issuance upon the vesting of PSUs. The Company has also reserved 23,438,430 shares of common stock in the aggregate for issuance upon conversion of the 2025 Convertible Notes and 2028 Convertible Notes, subject to adjustment in accordance with the applicable indentures. In connection with the Business Acquisition, the Company reserved 9,406,112 shares of the Company’s common stock, subject to certain closing-related reductions. The shares of the Company’s common stock reserved in connection with the Motus acquisition were partly issued as acquisition consideration at closing and on the first anniversary of the closing date of the acquisition, and will also be issued upon the second and third anniversaries of the closing date of the acquisition and upon the achievement of certain development and regulatory milestone events, subject to certain reductions. The shares of the Company’s common stock reserved in connection with the AlgaeneX acquisition will be issued upon the achievement of a development milestone event, subject to certain reductions.
Of the 9,406,112 shares reserved, subject to certain closing-related reductions, the Company issued 2,889,367 shares of the Company's common stock in connection with the Business Acquisition (Note 16) in the third quarter of 2021, after certain closing-related deductions. In the third quarter of 2022, the Company issued 171,427 shares of the Company's common stock to fulfill the payment required to Motus equityholders on the first anniversary of the Business Acquisition.
In the second quarter of 2023, in connection with the Company's acquisition of Adrestia Therapeutics Ltd. (Adrestia), the Company issued 3,430,867 shares of the Company's common stock as consideration at closing. See Note 16 - Acquisitions for further details.
In connection with the Company’s acquisition of Vertuis Bio, Inc. (Vertuis), the Company reserved 550,000 shares of the Company’s common stock, subject to future adjustment. An aggregate of 500,000 of the reserved shares were issued as
24
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
12. Shareholders' Equity (Continued)
acquisition consideration at closing. An additional $1 million of shares of common stock will be issued to Vertuis’ former stockholders on July 1, 2024, based on the share price on June 28, 2024. See Note 16 - Acquisitions for further details.
In October 2022, the Company completed an underwritten offering of 13,750,000 shares of the Company's common stock at a public offering price of $20.00 per share. The Company's net proceeds from the sale of the shares, after deducting the underwriting discounts and offering expense of $16.2 million, were $258.8 million.
In the second quarter of 2021, the Company completed an underwritten public offering of 11,500,000 shares of the Company's common stock, including 1,500,000 shares issued pursuant to the exercise in full of the underwriters' option to purchase additional shares from the Company, at a public offering price of $25.00 per share. The Company's net proceeds from the sale of the shares, after deducting the underwriting discounts and offering expenses of $17.5 million, were $270.1 million.
In the first quarter of 2021, the Company entered into a sales agreement with SVB Leerink LLC (now known as SVB Securities LLC) (SVB Securities), to sell shares of the Company's common stock, with aggregate gross sales proceeds of up to $250.0 million, from time to time, through an “at the market” equity offering program (the ATM program), under which SVB Securities acts as sales agent. In the second quarter of 2023, the Company issued and sold an aggregate of 2,000,000 shares of common stock through the ATM program at a weighted-average public offering price of $19.35 per share and received net proceeds of $37.5 million. During the third quarter of 2022, the Company issued and sold an aggregate of 1,289,995 shares of common stock through the ATM program at a weighted-average public offering price of $26.68 per share and received net proceeds of $33.4 million. As of June 30, 2023, an aggregate of $176.9 million of shares of common stock remain available to be issued and sold under the ATM program.
Preferred Stock — As of June 30, 2023, the Company had 200,000,000 shares of preferred stock authorized with a par value of $0.01 per share and no
13. Stock-Based Compensation
The Company's current equity compensation plan, the Insmed Incorporated Amended and Restated 2019 Incentive Plan (the 2019 Incentive Plan), was approved by shareholders at the Company's Annual Meeting of Shareholders on May 11, 2023. The 2019 Incentive Plan replaced the Insmed Incorporated 2019 Incentive Plan, as amended. The 2019 Incentive Plan is administered by the Compensation Committee of the Board of Directors of the Company. Under the terms of the 2019 Incentive Plan, the Company is authorized to grant a variety of incentive awards based on its common stock, including stock options (both incentive stock options and non-qualified stock options), RSUs, performance options/shares and other stock awards to eligible employees and non-employee directors. At the May 2023 Annual Meeting of Shareholders, in connection with approval of the 2019 Incentive Plan, the Company's shareholders approved the issuance of an additional 10,500,000 shares under the plan. As of June 30, 2023, 6,866,417 shares remain available for future issuance under the 2019 Incentive Plan. The 2019 Incentive Plan will terminate on May 16, 2029 unless it is extended or terminated earlier pursuant to its terms. In addition, from time to time, the Company makes inducement grants of stock options to new hires, which awards are made pursuant to the Nasdaq's inducement grant exception to the shareholder approval requirement for grants of equity compensation. During the six months ended June 30, 2023, the Company granted inducement stock options covering 1,299,040 shares of the Company's common stock to new employees.
On May 15, 2018, the 2018 Employee Stock Purchase Plan (2018 ESPP) was approved by shareholders at the Company's 2018 Annual Meeting of Shareholders. The Company has reserved the following for issuance under the 2018 ESPP: (i) 1,000,000 shares of common stock, plus (ii) commencing on January 1, 2019 and ending on December 31, 2023, an additional number of shares to be added on the first day of each calendar year equal to the lesser of (A) 1,200,000 shares of common stock, (B) 2 % of the number of outstanding shares of common stock on such date and (C) an amount determined by the administrator.
Stock Options — As of June 30, 2023, there was $143.5 million of unrecognized compensation expense related to unvested stock options. As of June 30, 2023, the Company had performance-conditioned options totaling 114,780 shares outstanding which had not yet met the recognition criteria.
Restricted Stock Units — As of June 30, 2023, there was $52.0 million of unrecognized compensation expense related to unvested RSU awards.
Performance Stock Units — As of June 30, 2023, there were 266,550 unvested PSUs outstanding with an unrecognized compensation expense of $10.4 million, which assumes a payout of 100 % of the target.
25
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
13. Stock-Based Compensation (Continued)
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Research and development | $ | $ | $ | $ | |||||||||||||||||||
| Selling, general and administrative | |||||||||||||||||||||||
| Total | $ | $ | $ | $ | |||||||||||||||||||
There was no
14. Income Taxes
The Company recorded a provision for income taxes of $0.5 million and $0.5 million for the three months ended June 30, 2023 and 2022, respectively, and $1.0 million and $0.9 million for the six months ended June 30, 2023 and 2022, respectively. The provisions recorded for the three and six months ended June 30, 2023 and 2022 are primarily a result of certain of the Company's international subsidiaries, which had taxable income during the periods. Additionally, the Company is impacted by certain state taxes which effectively impose income tax on modified gross revenues. In jurisdictions where the Company has net losses, there was a full valuation allowance recorded against the Company's deferred tax assets and therefore no tax benefit was recorded.
The Company is subject to US federal, state and international income taxes and the statute of limitations for tax audit is open for the Company’s federal tax returns for the years ended 2019 and later, generally open for certain states for the years 2018 and later, and generally open for international jurisdictions for the years 2017 and later. The Company has incurred net operating losses since inception, except for the year ended December 31, 2009. Such loss carryforwards would be subject to audit in any tax year in which those losses are utilized, notwithstanding the year of origin. As of June 30, 2023 and December 31, 2022, the Company had recorded reserves for unrecognized income tax benefits against certain deferred tax assets in the US. However, given the Company’s valuation allowance position, these reserves do not have an impact on the balance sheet as of June 30, 2023 and December 31, 2022 or the consolidated statements of comprehensive loss for the three and six months ended June 30, 2023 and 2022. The Company has no t recorded any accrued interest or penalties related to uncertain tax positions. The Company does not anticipate any material changes in the amount of unrecognized tax positions over the next 12 months.
15. Commitments and Contingencies
Rent expense charged to operations was $2.1 million and $1.9 million for the three months ended June 30, 2023 and 2022, respectively, and $4.3 million and $3.9 million for the six months ended June 30, 2023 and 2022, respectively.
Legal Proceedings
From time to time, the Company is a party to various lawsuits, claims and other legal proceedings that arise in the ordinary course of business. While the outcomes of these matters are uncertain, management does not expect that the ultimate costs to resolve these matters will have a material adverse effect on the Company's consolidated financial position, results of operations or cash flows.
16. Acquisitions
Asset Acquisitions
Adrestia Therapeutics Ltd
In June 2023, the Company acquired all of the issued and outstanding share capital of Adrestia, a privately held, preclinical stage company. At the closing of the transaction, the Company issued an aggregate of 3,430,867 shares of the Company’s common stock to Adrestia’s former shareholders (collectively, the Adrestia shareholders). The closing share price on the date of the transaction was $21.10 , resulting in a purchase price of $72.4 million. The Adrestia shareholders may also become entitled to receive contingent payments up to an aggregate of $326.5 million in cash upon the achievement of certain development, regulatory and commercial milestone events, as well as royalty payments based upon a low single-digit percentage of net sales of certain products, both subject to the terms and conditions of the agreement.
26
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
16. Acquisitions (Continued)
The shares of the Company’s common stock issued to the Adrestia shareholders were issued pursuant to Section 4(a)(2) of the Securities Act of 1933 (and, with respect to certain Adrestia shareholders, in reliance on Regulation S promulgated under the Securities Act of 1933). The Company did not receive any net proceeds from the issuance of common stock to the Adrestia shareholders.
The Company evaluated the acquisition under ASC 805 and ASU 2017-01 and concluded that substantially all of the fair value of the gross assets acquired are concentrated in a single identifiable asset or a group of similar identifiable assets and accounted for the transaction as an asset acquisition. The Company determined that the IPR&D acquired did not have any future alternative use and, in accordance with ASC 730, Research and Development, expensed the assets within research and development in the consolidated statement of comprehensive loss as of the date of the acquisition. The Company recognized $76.5 million as IPR&D expense, after adjusting for working capital assumed in connection with the asset acquisition.
Vertuis Bio, Inc.
In January 2023, the Company acquired Vertuis, a privately held, preclinical stage company. At the closing of the transaction, the Company issued an aggregate of 500,000 shares of the Company’s common stock to Vertuis’ former stockholders and an individual who are entitled to receive a portion of the acquisition consideration (collectively, the Vertuis equityholders). The closing share price on the date of the transaction was $18.50 . The Company is obligated to issue to Vertuis equityholders shares of the Company’s common stock on July 1, 2024 with an aggregate value of $1.0 million, based on the share price on June 28, 2024, and pay to the Vertuis equityholders up to an aggregate of $23.0 million in cash upon the achievement of certain development and regulatory milestone events, and up to an aggregate of $63.8 million in cash upon the achievement of certain net sales-based milestone events, in each case, subject to certain reductions.
The shares of the Company’s common stock issued to the Vertuis equityholders were issued, and the shares issuable in the future will be issued, pursuant to Section 4(a)(2) of the Securities Act of 1933.
The following table summarizes the purchase price (in millions).
| Shares of Insmed common stock issued on closing | $ | |||||||
| Shares of Insmed common stock issuable on July 1, 2024 | ||||||||
| Total purchase price | $ | |||||||
The Company evaluated the acquisition under ASC 805 and ASU 2017-01 and concluded that substantially all of the fair value of the gross assets acquired are concentrated in a single identifiable asset or a group of similar identifiable assets and accounted for the transaction as an asset acquisition. The Company determined that the assets acquired did not have any future alternative use and, in accordance with ASC 730, Research and Development, expensed the assets within research and development in the consolidated statement of comprehensive loss as of the date of the acquisition.
Business Combination
On August 4, 2021, the Company acquired all of the equity interests of Motus and AlgaeneX, each a privately held, preclinical stage company. In connection with the closing of the Company’s acquisition of Motus, the Company issued an aggregate of 2,889,367 shares of the Company’s common stock, following certain closing-related reductions, to Motus’s former stockholders and option holders and certain individuals who are entitled to receive a portion of the acquisition consideration (collectively, Motus equityholders), subject to certain adjustments. The Company is obligated to issue to Motus equityholders an aggregate of 184,433 5,348,572 shares in the aggregate upon the achievement of certain development and regulatory milestone events, and to pay to the Motus equityholders an aggregate of $35 million upon the achievement of certain net sales-based milestones and a portion of the value of a priority review voucher (to the extent issued to the Company), in each case, subject to certain reductions. During August 2022, the Company fulfilled the payment due on the first anniversary of the closing date by issuing 171,427 shares of the Company's common stock, after certain reductions.
At the closing of the Company’s acquisition of AlgaeneX, the Company paid $1.5 million in cash to AlgaeneX’s former stockholders and certain individuals who are entitled to receive a portion of the acquisition consideration (collectively, the AlgaeneX equityholders). The Company is obligated to issue to the AlgaeneX equityholders an aggregate of 368,867 shares of the Company’s common stock upon the achievement of a development milestone event and pay to the AlgaeneX equityholders a mid-single digits licensing fee on certain future payments received by the Company in licensing transactions for AlgaeneX’s manufacturing technology, in each case, subject to certain reductions.
27
INSMED INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
16. Acquisitions (Continued)
The shares of the Company’s common stock issued to the Motus equityholders and the AlgaeneX equityholders were issued, and the shares issuable in the future will be issued, pursuant to Section 4(a)(2) of the Securities Act of 1933, and the numbers of such issued and issuable shares was calculated based on a per share value of $27.11 45 consecutive trading day period beginning on May 24, 2021. The Company will not receive any proceeds from the issuance of common stock to the Motus equityholders or the AlgaeneX equityholders.
The Company evaluated the Business Acquisition under ASC 805 and ASU 2017-01. The Company concluded that substantially all of the fair value of the gross assets acquired is not concentrated in a single identifiable asset or a group of similar identifiable assets. The transaction does not pass the screen test and thus management performed a full assessment to determine if the acquired entities met the definition of a business. For the full assessment, management considered whether it has acquired (a) inputs, (b) substantive processes, and (c) outputs. Under ASC 805, to be considered a business, a set of activities and assets is required to have only the first two of the three elements, which together are or will be used in the future to create outputs. Management determined that the acquired entities met the definition of a business since the Company acquired inputs and substantive processes capable of producing outputs.
Therefore, the transaction has been accounted for under the acquisition method of accounting. Under the acquisition method, the total purchase price of the acquisition is allocated to the net tangible and identifiable intangible assets acquired and liabilities assumed based on the fair values as of the date of the acquisition. The fair value of the consideration totaled approximately $165.5 million. The results of Motus's and AlgaeneX's operations have been included in the Company's consolidated statements of comprehensive loss beginning on the acquisition date.
The fair value of IPR&D was capitalized as of the acquisition date and accounted for as indefinite-lived intangible assets until completion or disposition of the assets or abandonment of the associated research and development efforts. Upon successful completion of the development efforts, the useful lives of the IPR&D assets will be determined based on the anticipated period of regulatory exclusivity and will be amortized within operating expenses. Until that time, the IPR&D assets will be subject to impairment testing and will not be amortized. The goodwill recorded related to the acquisition is the excess of the fair value of the consideration transferred by the acquirer over the fair value of the net identifiable assets acquired and liabilities assumed at the date of acquisition. The goodwill recorded is not deductible for tax purposes.
28
ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Cautionary Note Regarding Forward-Looking Statements
This Quarterly Report on Form 10-Q contains forward-looking statements that involve substantial risks and uncertainties. "Forward-looking statements," as that term is defined in the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended (the "Securities Act") and Section 21E of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are statements that are not historical facts and involve a number of risks and uncertainties. Words herein such as "may," "will," "should," "could," "would," "expects," "plans," "anticipates," "believes," "estimates," "projects," "predicts," "intends," "potential," "continues," and similar expressions (as well as other words or expressions referencing future events, conditions or circumstances) identify forward-looking statements.
Forward-looking statements are based on our current expectations and beliefs, and involve known and unknown risks, uncertainties and other factors, which may cause our actual results, performance and achievements and the timing of certain events to differ materially from the results, performance, achievements or timing discussed, projected, anticipated or indicated in any forward-looking statements. Such risks, uncertainties and other factors include, among others, the following:
•failure to successfully commercialize ARIKAYCE, our only approved product, in the United States (US), Europe or Japan (amikacin liposome inhalation suspension, Liposomal 590 mg Nebuliser Dispersion, and amikacin sulfate inhalation drug product, respectively), or to maintain US, European or Japanese approval for ARIKAYCE;
•uncertainties in the degree of market acceptance of ARIKAYCE by physicians, patients, third-party payors and others in the healthcare community;
•our inability to obtain full approval of ARIKAYCE from the US Food and Drug Administration (FDA), including the risk that we will not successfully or in a timely manner complete the study to validate a patient reported outcome (PRO) tool and the confirmatory post-marketing clinical trial required for full approval of ARIKAYCE;
•inability of us, PARI Pharma GmbH (PARI) or our other third-party manufacturers to comply with regulatory requirements related to ARIKAYCE or the Lamira® Nebulizer System (Lamira);
•our inability to obtain adequate reimbursement from government or third-party payors for ARIKAYCE or acceptable prices for ARIKAYCE;
•development of unexpected safety or efficacy concerns related to ARIKAYCE, brensocatib, TPIP or our other product candidates;
•inaccuracies in our estimates of the size of the potential markets for ARIKAYCE, brensocatib, TPIP or our other product candidates or in data we have used to identify physicians, expected rates of patient uptake, duration of expected treatment, or expected patient adherence or discontinuation rates;
•the risks and uncertainties associated with, and the perceived benefits of, our secured senior loan with certain funds managed by Pharmakon Advisors, LP and our royalty financing with OrbiMed Royalty & Credit Opportunities IV, LP, including our ability to maintain compliance with the covenants in the agreements for the senior secured loan and royalty financing and the impact of the restrictions on our operations under these agreements;
•our inability to create an effective direct sales and marketing infrastructure or to partner with third parties that offer such an infrastructure for distribution of ARIKAYCE or any of our product candidates that are approved in the future;
•failure to obtain regulatory approval to expand ARIKAYCE’s indication to a broader patient population;
•risk that brensocatib or TPIP does not prove to be effective or safe for patients in ongoing and future clinical studies, including, for brensocatib, the ASPEN study;
•risk that our competitors may obtain orphan drug exclusivity for a product that is essentially the same as a product we are developing for a particular indication;
•failure to successfully predict the time and cost of development, regulatory approval and commercialization for novel gene therapy products;
•failure to successfully conduct future clinical trials for ARIKAYCE, brensocatib, TPIP and our other product candidates due to our limited experience in conducting preclinical development activities and clinical trials necessary for regulatory approval and our potential inability to enroll or retain sufficient patients to conduct and complete the trials or generate data necessary for regulatory approval, among other things;
•risks that our clinical studies will be delayed or that serious side effects will be identified during drug development;
•failure to obtain, or delays in obtaining, regulatory approvals for ARIKAYCE outside the US, Europe or Japan, or for our product candidates in the US, Europe, Japan or other markets, including separate regulatory approval for Lamira in each market and for each usage;
29
•failure of third parties on which we are dependent to manufacture sufficient quantities of ARIKAYCE or our product candidates for commercial or clinical needs, to conduct our clinical trials, or to comply with our agreements or laws and regulations that impact our business or agreements with us;
•our inability to attract and retain key personnel or to effectively manage our growth;
•our inability to successfully integrate our recent acquisitions and appropriately manage the amount of management’s time and attention devoted to integration activities;
•risks that our acquired technologies, products and product candidates are not commercially successful;
•our inability to adapt to our highly competitive and changing environment;
•risk that we are unable to maintain our significant customers;
•risk that government healthcare reform materially increases our costs and damages our financial condition;
•business or economic disruptions due to catastrophes or other events, including natural disasters or public health crises;
•impact of the COVID-19 pandemic and efforts to reduce its spread on our business, employees, including key personnel, patients, partners and suppliers;
•deterioration in general economic conditions in the US, Europe, Japan and globally, including the effect of prolonged periods of inflation, affecting us, our suppliers, third-party service providers and potential partners;
•our inability to adequately protect our intellectual property rights or prevent disclosure of our trade secrets and other proprietary information and costs associated with litigation or other proceedings related to such matters;
•restrictions or other obligations imposed on us by agreements related to ARIKAYCE or our product candidates, including our license agreements with PARI and AstraZeneca AB (AstraZeneca), and failure to comply with our obligations under such agreements;
•the cost and potential reputational damage resulting from litigation to which we are or may become a party, including product liability claims;
•risk that our operations are subject to a material disruption in the event of a cybersecurity attack or issue;
•our limited experience operating internationally;
•changes in laws and regulations applicable to our business, including any pricing reform, and failure to comply with such laws and regulations;
•our history of operating losses, and the possibility that we never achieve or maintain profitability;
•goodwill impairment charges affecting our results of operations and financial condition;
•inability to repay our existing indebtedness and uncertainties with respect to our ability to access future capital; and
•delays in the execution of plans to build out an additional third-party manufacturing facility approved by the appropriate regulatory authorities and unexpected expenses associated with those plans.
We caution readers not to place undue reliance on any such forward-looking statements, which speak only as of the date they are made. Any forward-looking statement is based on information current as of the date of this Quarterly Report on Form 10-Q and speaks only as of the date on which such statement is made. Actual events or results may differ materially from the results, plans, intentions or expectations anticipated in these forward-looking statements as a result of a variety of factors, many of which are beyond our control. More information on factors that could cause actual results to differ materially from those anticipated is included from time to time in our reports filed with the Securities and Exchange Commission (SEC), including, but not limited to, those described in the sections titled “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in this Quarterly Report on Form 10-Q and included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022. We disclaim any obligation, except as specifically required by law and the rules of the SEC, to publicly update or revise any such statements to reflect any change in our expectations or in events, conditions or circumstances on which any such statements may be based, or that may affect the likelihood that actual results will differ from those set forth in the forward-looking statements.
The following discussion should be read in conjunction with our consolidated financial statements and related notes thereto included elsewhere in this Quarterly Report on Form 10-Q and the consolidated financial statements and related notes thereto in our Annual Report on Form 10-K for the year ended December 31, 2022.
OVERVIEW
We are a global biopharmaceutical company on a mission to transform the lives of patients with serious and rare diseases. Our first commercial product, ARIKAYCE, is approved in the US as ARIKAYCE® (amikacin liposome inhalation suspension), in Europe as ARIKAYCE Liposomal 590 mg Nebuliser Dispersion and in Japan as ARIKAYCE inhalation 590mg (amikacin sulfate inhalation drug product). ARIKAYCE received accelerated approval in the US in September 2018 for the
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treatment of MAC lung disease as part of a combination antibacterial drug regimen for adult patients with limited or no alternative treatment options in a refractory setting. In October 2020, the EC approved ARIKAYCE for the treatment of NTM lung infections caused by MAC in adults with limited treatment options who do not have CF. In March 2021, Japan's MHLW approved ARIKAYCE for the treatment of patients with NTM lung disease caused by MAC who did not sufficiently respond to prior treatment with a multidrug regimen. NTM lung disease caused by MAC (which we refer to as MAC lung disease) is a rare and often chronic infection that can cause irreversible lung damage and can be fatal.
Our clinical-stage pipeline includes brensocatib, TPIP and early-stage research programs. Brensocatib is a small molecule, oral, reversible inhibitor of DPP1, which we are developing for the treatment of patients with bronchiectasis, and other neutrophil-mediated diseases, including CRSsNP. TPIP is an inhaled formulation of the treprostinil prodrug treprostinil palmitil which may offer a differentiated product profile for PH-ILD and PAH. Our early-stage research programs encompass a wide range of technologies and modalities, including gene therapy, artificial intelligence-driven protein engineering, protein manufacturing, and synthetic rescue.
The information below summarizes the anticipated near-term milestones for ARIKAYCE and our product candidates.
ARIKAYCE
•We will continue to advance the ARISE and ENCORE trials, our post-marketing confirmatory, MAC lung disease clinical trial program for ARIKAYCE.
•We anticipate sharing topline efficacy and safety data from ARISE in the third quarter of 2023.
•We anticipate completing enrollment in ENCORE by the end of 2023.
Brensocatib
•In the first quarter of 2023, we completed enrollment of the Phase 3 ASPEN trial in adult patients, and we anticipate sharing topline data in the second quarter of 2024.
•We plan to explore the potential of brensocatib in additional neutrophil-mediated diseases, including advancing CRSsNP into Phase 2 development in the fourth quarter of 2023.
•We are advancing commercial readiness activities in 2023 in preparation for a launch of brensocatib for patients with bronchiectasis, if approved.
TPIP
•We will continue to advance our Phase 2 studies in both PH-ILD and PAH.
•We anticipate sharing interim, blinded dose titration and safety and tolerability data from both the PH-ILD and PAH studies in the second half of 2023, pending the rate of enrollment.
•We anticipate sharing topline results from the PH-ILD study in the first half of 2024.
Early-Stage Research
•We remain on track to initiate our first clinical trial in gene therapy in the second half of 2023.
•We anticipate sharing muscle biopsy data in Duchenne muscular dystrophy (DMD) in the first half of 2024.
To complement our internal research and development, we also actively evaluate in-licensing and acquisition opportunities for a broad range of rare diseases.
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Our Strategy
Our strategy focuses on the needs of patients with rare diseases. Our first product ARIKAYCE, is approved in the US as ARIKAYCE® (amikacin liposome inhalation suspension), in Europe as ARIKAYCE Liposomal 590 mg Nebuliser Dispersion and in Japan as ARIKAYCE inhalation 590mg (amikacin sulfate inhalation drug product). We are not aware of any other approved inhaled therapies specifically indicated to treat MAC lung disease in North America, Europe or Japan. We believe that ARIKAYCE has the potential to prove beneficial in other patients with MAC. Our product candidates are brensocatib, our Phase 3 product candidate which we are developing for patients with bronchiectasis, and other neutrophil-mediated diseases, and TPIP, our product candidate that may offer a differentiated product profile for patients with PH-ILD and PAH. We are also advancing our early-stage research programs encompassing a wide range of technologies and modalities, including gene therapy, artificial intelligence-driven protein engineering, protein manufacturing, and synthetic rescue. Our key priorities are as follows:
•Continue to provide ARIKAYCE to appropriate patients by leveraging and expanding our reliable revenue stream;
•Produce topline clinical data readouts in the near and long term;
•Advance commercial readiness activities to serve significantly more patients with serious and rare diseases; and
•Control spending, prudently deploying capital to support the best return-generating opportunities.
ARIKAYCE for Patients with MAC Lung Disease
ARIKAYCE is our first approved product. ARIKAYCE received accelerated approval in the US in September 2018 for the treatment of refractory MAC lung disease as part of a combination antibacterial drug regimen for adult patients with limited or no alternative treatment options. In October 2020, ARIKAYCE received approval in Europe for the treatment of NTM lung infections caused by MAC in adults with limited treatment options who do not have CF. In March 2021, ARIKAYCE received approval in Japan for the treatment of patients with NTM lung disease caused by MAC who did not sufficiently respond to prior treatment with a multidrug regimen. MAC lung disease is a rare and often chronic infection that can cause irreversible lung damage and can be fatal. Amikacin solution for parenteral administration is an established drug that has activity against a variety of NTM; however, its use is limited by the need to administer it intravenously and by toxicity to hearing, balance, and kidney function. Unlike amikacin solution for intravenous administration, our proprietary Pulmovance™ technology uses charge-neutral liposomes to deliver amikacin directly to the lungs where liposomal amikacin is taken up by the lung macrophages where the MAC infection resides. This technology also prolongs the release of amikacin in the lungs, while minimizing systemic exposure, thereby offering the potential for decreased systemic toxicities. ARIKAYCE's ability to deliver high levels of amikacin directly to the lung and sites of MAC infection via the use of our Pulmovance technology distinguishes it from intravenous amikacin. ARIKAYCE is administered once-daily using Lamira, an inhalation device developed and manufactured by PARI. Lamira is a portable nebulizer that enables aerosolization of liquid medications via a vibrating, perforated membrane, and was designed specifically for ARIKAYCE delivery.
The FDA has designated ARIKAYCE as an orphan drug and a Qualified Infectious Disease Product (QIDP) for NTM lung disease. Orphan designated drugs are eligible for seven years of exclusivity for the orphan indication. QIDP designation provides an additional five years of exclusivity for the designated indication. The FDA granted a total of 12 years of exclusivity in the indication for which ARIKAYCE was approved.
ARIKAYCE also has been included in the international treatment guidelines for NTM lung disease. The evidence-based guidelines, issued by the American Thoracic Society (ATS), European Respiratory Society (ERS), European Society of Clinical Microbiology and Infectious Diseases (ESCMID), and Infectious Diseases Society of America (IDSA), strongly recommend the use of ARIKAYCE for MAC lung disease as part of a combination antibacterial drug regimen for adult patients with limited or no alternative treatment options who have failed to convert to a negative sputum culture after at least six months of treatment.
In October 2020, the FDA approved a supplemental new drug application for ARIKAYCE, adding important efficacy data regarding the durability and sustainability of culture conversion to the ARIKAYCE label. The data, which are from the Phase 3 CONVERT study of ARIKAYCE, demonstrate that the addition of ARIKAYCE to guideline-based therapy (GBT) was associated with sustained culture conversion through the end of treatment as well as durable culture conversion three months post-treatment compared with GBT alone.
Accelerated Approval
In March 2018, we submitted a new drug application (NDA) for ARIKAYCE to the FDA to request accelerated approval. Accelerated approval allows drugs that (i) are being developed to treat a serious or life-threatening disease or condition and (ii) provide a meaningful therapeutic benefit over existing treatments to be approved substantially based on an intermediate endpoint or a surrogate endpoint that is reasonably likely to predict clinical benefit, rather than a clinical endpoint such as survival or irreversible morbidity. In September 2018, the FDA granted accelerated approval for ARIKAYCE under the Limited Population Pathway for Antibacterial and Antifungal Drugs (LPAD) for the treatment of refractory MAC lung disease
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as part of a combination antibacterial drug regimen for adult patients with limited or no alternative treatment options via the accelerated approval pathway. LPAD, which was enacted as part of the 21st Century Cures Act, serves to advance the development of new antibacterial drugs to treat serious or life-threatening infections in limited populations of patients with unmet needs. As required for drugs approved under the LPAD pathway, labeling for ARIKAYCE includes certain statements to convey that the drug has been shown to be safe and effective only for use in a limited population.
As a condition of accelerated approval, we must conduct a post-marketing confirmatory clinical trial. In December 2020, we commenced the post-marketing confirmatory MAC lung disease clinical trial program for ARIKAYCE in patients with MAC lung disease. The MAC lung disease trial program consists of the ARISE trial, an interventional study designed to validate cross-sectional and longitudinal characteristics of a PRO tool in MAC lung disease, and the ENCORE trial, designed to establish the clinical benefits and evaluate the safety of ARIKAYCE in patients with newly diagnosed or recurrent MAC lung infection who have not started antibiotics using the PRO tool validated in the ARISE trial. We are running these global studies in parallel and approximately 200 sites are expected to be initiated for these clinical trials. We have completed enrollment in the ARISE trial and anticipate completing enrollment in ENCORE by the end of 2023. The MAC lung disease clinical program is intended to fulfill the FDA’s post-marketing requirement to allow for full approval of ARIKAYCE by the FDA, and verification and description of clinical benefit in the ENCORE trial will be necessary for full approval of ARIKAYCE.
Regulatory Pathway Outside of the US
In October 2020, the EC granted marketing authorization for ARIKAYCE for the treatment of NTM lung infections caused by MAC in adults with limited treatment options who do not have CF. ARIKAYCE is now available commercially for patients in several of the major European Union (EU) countries. In October 2022, we secured reimbursement approval for ARIKAYCE in England, at which point ARIKAYCE became reimbursed across all UK nations. In September 2022, patient supply of ARIKAYCE in Germany was enabled by import from other EU countries. We have worked with the German National Association of Statutory Health Insurance Funds (GKV-SV) towards an agreement on the price of ARIKAYCE that would allow us to better serve the needs of patients in Germany; however, to date, we have been unable to reach an agreement. We are working to ensure an uninterrupted supply of ARIKAYCE for patients in Germany and to provide physicians and pharmacists the information they need to obtain ARIKAYCE for their patients through the importation pathway. Discussions remain ongoing with the GKV-SV with the goal of reaching an agreement and re-initiating direct access to ARIKAYCE. In January 2023, we agreed upon reimbursement terms with the French authorities. To date, we have been unable to reach an acceptable agreement of a nationally reimbursed price with the Italian Medicines Agency (AIFA). ARIKAYCE remains commercially available for physicians to prescribe in Italy under Class C, where we set the price and funding is agreed locally. We anticipate recommencing negotiations for national reimbursement in 2023 with the newly constituted AIFA.
In March 2021, Japan's MHLW approved ARIKAYCE for the treatment of patients with NTM lung disease caused by MAC who did not sufficiently respond to prior treatment with a multidrug regimen. In July 2021, we launched ARIKAYCE in Japan.
The CONVERT Study and 312 Study
Accelerated approval of ARIKAYCE was supported by preliminary data from the CONVERT study, a global Phase 3 study evaluating the safety and efficacy of ARIKAYCE in adult patients with refractory MAC lung disease, using achievement of sputum culture conversion (defined as three consecutive negative monthly sputum cultures) by Month 6 as the primary endpoint. Patients who achieved sputum culture conversion by Month 6 continued in the CONVERT study for an additional 12 months of treatment following the first monthly negative sputum culture in order to assess the durability of culture conversion, as defined by patients that have completed treatment and continued in the CONVERT study off all therapy for three months. In May 2019, we presented at the American Thoracic Society meeting that 41/65 (63.1%) of patients on ARIKAYCE plus GBT who had achieved culture conversion by Month 6 had maintained durable culture conversion for three months off all therapy compared to 0/10 (0%) on GBT only (p<0.0002). Safety data for these patients were consistent with safety data previously reported for patients by Month 6 of the CONVERT study.
Patients who did not culture convert by Month 6 may have been eligible to enroll in the 312 study, an open-label extension study for these non-converting patients who completed six months of treatment in the CONVERT study. The primary objective of the 312 study was to evaluate the long-term safety and tolerability of ARIKAYCE in combination with a standard multi-drug regimen. The secondary objectives of the 312 study included evaluating the proportion of subjects achieving culture conversion (defined in the same way as the CONVERT study) by Month 6 and the proportion of subjects achieving culture conversion by Month 12, which was the end of treatment. We previously reported interim data as of December 2017 for patients in the 312 study, with 28.4% of patients who received GBT only in the CONVERT study (19/67) and 12.3% of patients who had received ARIKAYCE plus GBT in the CONVERT study (7/57) achieving culture conversion by Month 6 of the 312 study. The 312 study has concluded and final efficacy data regarding culture conversion were consistent with these interim data. We have analyzed the safety and efficacy data from the 312 study, and we did not observe any new safety signals.
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Further Research and Lifecycle Management
We are currently exploring and supporting research and lifecycle management programs for ARIKAYCE beyond treatment of refractory MAC lung disease as part of a combination antibacterial regimen for adult patients who have limited or no treatment options. As noted above, we will continue to advance the post-marketing confirmatory, MAC lung disease clinical trial program for ARIKAYCE, through the ARISE and ENCORE trials, which are intended to fulfill the FDA's post-marketing requirement to allow for the full approval of ARIKAYCE in the US, as well as to support the use of ARIKAYCE as a treatment for patients with MAC lung infection.
The ARISE trial is a randomized, double-blind, placebo-controlled Phase 3b study in adult patients with newly diagnosed or recurrent MAC lung infections that aims to generate evidence demonstrating the domain specification, reliability, validity, and responsiveness of PRO-based scores, including a respiratory symptom score. Patients were randomized 1:1 to receive ARIKAYCE plus background regimen or placebo plus background regimen once daily for six months. Patients will then discontinue all study treatments and remain in the trial for one month for the continued assessment of PRO endpoints. In the fourth quarter of 2022, we completed enrollment in the ARISE trial. We anticipate sharing topline efficacy and safety data from ARISE in the third quarter of 2023.
The ENCORE trial is a randomized, double-blind, placebo-controlled Phase 3b study to evaluate the efficacy and safety of an ARIKAYCE-based regimen in patients with newly diagnosed or recurrent MAC lung infection who have not started antibiotics. Patients will be randomized 1:1 to receive ARIKAYCE plus background regimen or placebo plus background regimen once daily for 12 months. Patients will then discontinue all study treatments and remain in the trial for three months for the assessment of durability of culture conversion. The primary endpoint is change from baseline to Month 13 in respiratory symptom score. The key secondary endpoint is the proportion of subjects achieving durable culture conversion at Month 15. The study is currently enrolling patients, and is expected to enroll approximately 250 patients. We anticipate completing enrollment for ENCORE by the end of 2023.
Subsequent lifecycle management studies could also potentially enable us to reach more patients. These initiatives may include new clinical studies sponsored by us and may also include investigator-initiated studies, which are independent clinical studies initiated and sponsored by physicians or research institutions, with funding from us.
Product Pipeline
Brensocatib
Brensocatib is a small molecule, oral, reversible inhibitor of DPP1, which we licensed from AstraZeneca in October 2016. DPP1 is an enzyme responsible for activating neutrophil serine proteases (NSPs) in neutrophils when they are formed in the bone marrow. Neutrophils are the most common type of white blood cell and play an essential role in pathogen destruction and inflammatory mediation. Neutrophils contain the NSPs (including neutrophil elastase, proteinase 3, and cathepsin G) that have been implicated in a variety of inflammatory diseases. In chronic inflammatory lung diseases, neutrophils accumulate in the airways and result in excessive active NSPs that cause lung destruction and inflammation. Brensocatib may decrease the damaging effects of inflammatory diseases such as bronchiectasis by inhibiting DPP1 and its activation of NSPs.
Based on the positive results of the WILLOW study discussed below, in December 2020 we commenced our Phase 3 trial, ASPEN, which will investigate brensocatib in bronchiectasis. ASPEN is a global, randomized, double-blind, placebo-controlled Phase 3 study to assess the efficacy, safety, and tolerability of brensocatib in adult patients with bronchiectasis. Patients with bronchiectasis due to CF may not be enrolled in the study. Patients will be randomized to receive brensocatib 10 mg, brensocatib 25 mg, or placebo once daily for 52 weeks. The primary endpoint is the rate of pulmonary exacerbations over the 52-week treatment period. Secondary endpoints include time to first pulmonary exacerbation, percentage of subjects who remain pulmonary exacerbation-free, change from baseline in post-bronchodilator FEV1, rate of severe pulmonary exacerbations, change from baseline in the Bronchiectasis (QOL-B) Respiratory Symptoms Domain Score, and incidence and severity of treatment-emergent adverse events (AEs). This study completed enrollment of adult patients in the first quarter of 2023. The study enrolled more than 1,700 adult patients at approximately 460 sites in 40 countries. We anticipate sharing topline data in the second quarter of 2024.
In March 2020, AstraZeneca exercised its first option pursuant to our October 2016 license agreement under which AstraZeneca can advance clinical development of brensocatib in the indications of chronic obstructive pulmonary disease (COPD) or asthma. Under the terms of the agreement, upon exercise of this option, AstraZeneca is solely responsible for all aspects of the development of brensocatib up to and including Phase 2b clinical trials in COPD or asthma. The agreement also includes a second and final option which, if exercised, would permit AstraZeneca to further develop brensocatib beyond Phase 2b clinical trials upon reaching agreement on commercial terms satisfactory to each party for the further development and commercialization of brensocatib in COPD or asthma. We retain full development and commercialization rights for brensocatib in all other indications and geographies.
In June 2020, the FDA granted breakthrough therapy designation for brensocatib for the treatment of adult patients
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with non-cystic fibrosis bronchiectasis (NCFBE) for reducing exacerbations. The FDA's breakthrough therapy designation is designed to expedite the development and review of therapies that are intended to treat serious or life-threatening diseases and for which preliminary clinical evidence indicates that the drug may demonstrate substantial improvement over available therapy. The benefits of breakthrough therapy designation include more frequent communication and meetings with FDA, eligibility for rolling and priority review, intensive guidance on an efficient drug development program, and organizational commitment from the FDA involving senior managers. In November 2020, brensocatib was granted access to the PRIME scheme from the European Medicines Agency (EMA) for patients with NCFBE.
In October 2021, the EMA’s Paediatric Committee approved the brensocatib Pediatric Investigational Plan for the treatment of patients with NCFBE. Subsequently, the ASPEN trial will now include 40 adolescent patients between ages 12 to 17, which will fulfill the pediatric study requirements to support marketing applications in this patient population in the US, Europe and Japan.
The WILLOW Study
The WILLOW study was a randomized, double-blind, placebo-controlled, parallel-group, multi-center, multi-national, Phase 2 study to assess the efficacy, safety and tolerability, and pharmacokinetics of brensocatib administered once daily for 24 weeks in patients with NCFBE. The WILLOW study was conducted at 116 sites and enrolled 256 adult patients diagnosed with NCFBE who had at least two documented pulmonary exacerbations in the 12 months prior to screening. Patients were randomized 1:1:1 to receive either 10 mg or 25 mg of brensocatib or matching placebo. The primary efficacy endpoint was the time to first pulmonary exacerbation over the 24-week treatment period in the brensocatib arms compared to the placebo arm.
WILLOW Efficacy Data
We announced topline data for the WILLOW study in February 2020 and full data for the WILLOW study in June 2020. In September 2020, final results from the WILLOW study were published online in the New England Journal of Medicine. The data demonstrate that the WILLOW study met its primary endpoint of time to first pulmonary exacerbation over the 24-week treatment period for both the 10 mg and 25 mg dosage groups of brensocatib compared to placebo (p=0.027, p=0.044, respectively). The risk of exacerbation at any time during the trial was reduced by 42% for the 10 mg group versus placebo (HR 0.58, p=0.029) and by 38% for the 25 mg group versus placebo (HR 0.62, p=0.046). In addition, treatment with brensocatib 10 mg resulted in a significant reduction in the rate of pulmonary exacerbations, a key secondary endpoint, versus placebo. Specifically, patients treated with brensocatib experienced a 36% reduction in the 10 mg arm (p=0.041) and a 25% reduction in the 25 mg arm (p=0.167) versus placebo. Change in concentration of active neutrophil elastase in sputum versus placebo from baseline to the end of the treatment period was also statistically significant (p=0.034 for 10 mg, p=0.021 for 25 mg).
WILLOW Safety and Tolerability Data
Brensocatib was generally well-tolerated in the study. Rates of AEs leading to discontinuation in patients treated with placebo, brensocatib 10 mg, and brensocatib 25 mg were 10.6%, 7.4%, and 6.7%, respectively. The most common AEs in patients treated with brensocatib were cough, headache, sputum increase, dyspnea, fatigue, and upper respiratory tract infection. Rates of adverse events of special interest (AESIs) in patients treated with placebo, brensocatib 10 mg, and brensocatib 25 mg, respectively, were as follows: rates of skin events (including hyperkeratosis) were 11.8%, 14.8%, and 23.6%; rates of dental events were 3.5%, 16.0%, and 10.1%; and rates of infections that were considered AESIs were 17.6%, 13.6%, and 16.9%.
Further Research and Development
In August 2019, we received notice from the FDA that we were awarded a development grant of $1.8 million for specific work to be performed on a PRO tool. The grant funding is for the development of a novel PRO tool for use in clinical trials to measure symptoms in patients with NCFBE with and without NTM lung infection.
In January 2023, we reported topline data from the Phase 2, multiple-dose, pharmacokinetic/pharmacodynamic study of brensocatib in patients with CF. This Phase 2 study included both patients who were on background CFTR modulator drugs and patients who were not on CFTR modulator drugs. The study duration was approximately one month and dosed CF patients to placebo, 10 mg, 25 mg, and 40 mg of brensocatib. A clear dose-dependent and exposure-dependent inhibition of blood NSPs was observed in patients treated with brensocatib across all doses in this study, consistent with the mechanism of action of brensocatib. Safety and tolerability were consistent with what was observed during the Phase 2 WILLOW study, with no significant drug-related findings. We concluded that an additional cohort evaluating a 65 mg dose of brensocatib is not needed in this patient population. We believe that we can use the data from this Phase 2 study, in addition to the clinical work done for the WILLOW and ASPEN studies, to help inform the safety and efficacy of brensocatib for CF patients.
We also plan to explore the potential of brensocatib in additional neutrophil-mediated diseases, including CRSsNP. CRSsNP currently has no approved therapies and many patients do not respond to corticosteroids or endoscopic sinus surgery. We anticipate moving brensocatib into Phase 2 development for CRSsNP in the fourth quarter of 2023.
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Market Opportunity for Brensocatib in Bronchiectasis
Bronchiectasis is a severe, chronic pulmonary disorder in which the bronchi become permanently dilated due to a cycle of infection, inflammation, and lung tissue damage. The condition is marked by frequent pulmonary exacerbations requiring antibiotic therapy and/or hospitalizations. Symptoms include chronic cough, excessive sputum production, shortness of breath, and repeated respiratory infections, which can worsen the underlying condition. Based on information from external sources, including market research funded by us and third parties, and internal analyses and calculations, we estimate the potential addressable market at launch in the US, the European 5 and Japan will be as follows (approximately):
| Potential Market | Estimated Number of Patients Diagnosed with Bronchiectasis | ||||
| United States | 450,000 | ||||
| European 5 | 400,000 | ||||
| Japan | 150,000 | ||||
Today, there are no approved therapies in the US, Europe, or Japan for the treatment of patients with bronchiectasis.
Treprostinil Palmitil Inhalation Powder
TPIP is an investigational inhaled formulation of a treprostinil prodrug that has the potential to address certain of the current limitations of existing prostanoid therapies. We believe that TPIP prolongs duration of effect and may provide patients with greater consistency in pulmonary arterial pressure reduction over time. Current inhaled prostanoid therapies must be dosed four to nine times per day. Reducing dose frequency has the potential to ease treatment burden for patients and improve compliance. Additionally, we believe that TPIP may be associated with fewer side effects, including severity and/or frequency of cough, headache, throat irritation, nausea, flushing and dizziness that are associated with high initial drug levels and local upper airway exposure when using current inhaled prostanoid therapies. We believe TPIP may offer a differentiated product profile for PH-ILD and PAH.
In February 2021, we announced topline results from the Phase 1 study of TPIP in healthy volunteers. The objective of this first-in-human single ascending dose and multiple ascending dose study was to assess the pharmacokinetics and tolerability profile of TPIP. Data from the study demonstrated that TPIP was generally well tolerated, with a pharmacokinetic profile that supports continued development with once-daily dosing. The most common AEs across all cohorts in the study were cough, dizziness, headache, and nausea. Most AEs were mild in severity and consistent in nature with those typically seen with other inhaled prostanoid therapies. There were few moderate AEs and no severe or serious AEs. Subjects in the multiple dose panel that incorporated an up-titration approach beginning at 112.5 µg once-daily and progressing to 225 µg once-daily reported fewer AEs compared to the panel dosed with 225 µg once-daily from the first dose.
Overall pharmacokinetic results demonstrated that treprostinil exposure (AUC and Cmax) was dose-proportional, with low to moderate inter-subject variability. Treprostinil was detected in the plasma at 24 hours at all doses and throughout the 48-hour sampling period for the two highest doses. Compared with currently available inhaled treprostinil therapy, TPIP showed substantially lower Cmax and longer half-life. Data from this study were presented in an oral session at the European Society of Cardiology Congress in August 2021.
We are advancing the development of TPIP with two ongoing Phase 2 studies. The first study is designed to assess the safety and tolerability of TPIP in patients with PH-ILD over a 16-week treatment period using an up-titration, once-daily dosing schedule. The second study is designed to investigate the effect of TPIP in patients with PAH on changes in PVR and six-minute walk distance over a 16-week treatment period and will also employ an up-titration, once-daily dosing schedule. A third study, which was a Phase 2a study designed to study the immediate impact of a single dose of TPIP in PAH patients over a 24-hour period was discontinued primarily due to hospital and intensive care unit restrictions during the COVID-19 pandemic that were necessary to conduct the study. One patient was dosed in this study at 112.5 micrograms. This patient went on to complete the 16-week extension period for the study and was titrated to a dose of 320 micrograms once daily, which was found to be safe and tolerable. We did not observe any safety concerns with TPIP, and the data suggested a trend toward improvement in various cardiac measures during the study period.
We will continue to advance our Phase 2 development work in both PH-ILD and PAH. We anticipate sharing interim, blinded dose titration and safety and tolerability data from both the PH-ILD and PAH studies in the second half of 2023. We expect topline results from the PH-ILD study to be shared in the first half of 2024.
Early-Stage Research
Our early-stage research efforts are comprised of our preclinical programs, advanced through internal research and development and augmented through business development activities. In March 2021, we acquired a proprietary protein deimmunization platform, called Deimmunized by Design, focused on the reengineering of therapeutic proteins to evade immune recognition and reaction. In August 2021, we acquired Motus and AlgaeneX, preclinical stage companies engaged in
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the research, development and manufacturing of gene therapies for rare genetic disorders. In January 2023, we acquired Vertuis, a privately held, preclinical stage company engaged in the research and development of gene therapies for rare genetic disorders. In June 2023, we acquired Adrestia, a privately held, preclinical stage company using precision genetic models to search for therapeutic targets, precision diagnostics, novel drug compounds and new applications for existing drugs.
Our initial therapeutic areas of focus include musculoskeletal, CNS, ocular, and rheumatologic diseases. Our first gene therapy candidate using a targeted intrathecal delivery approach will be in DMD. We anticipate sharing muscle biopsy data in DMD in the first half of 2024.
Corporate Development
We plan to continue to develop, acquire, in-license or co-promote other products, product candidates and technologies, including those that address serious and rare diseases that currently have significant unmet needs. We are focused broadly on serious and rare disease therapeutics and prioritizing those areas that best align with our core competencies.
KEY COMPONENTS OF OUR RESULTS OF OPERATIONS
Product Revenues, Net
Product revenues, net, consist of net sales of ARIKAYCE. In October 2018, we began shipping ARIKAYCE to our customers in the US, which include specialty pharmacies and specialty distributors. In December 2020, we began commercial sales of ARIKAYCE in Europe. In July 2021, we began recognizing product revenue from commercial sales of ARIKAYCE in Japan. We recognize revenue for product received by our customers net of allowances for customer credits, including prompt pay discounts, service fees, estimated rebates, including government rebates, such as Medicaid rebates and Medicare Part D coverage gap reimbursements in the US, and chargebacks.
Cost of Product Revenues (Excluding Amortization of Intangible Assets)
Cost of product revenues (excluding amortization of intangible assets) consist primarily of direct and indirect costs related to the manufacturing of ARIKAYCE sold, including third-party manufacturing costs, packaging services, freight, and allocation of overhead costs, in addition to royalty expenses and revenue-based milestones. We began capitalizing inventory upon FDA approval of ARIKAYCE.
Research and Development (R&D) Expenses
R&D expenses consist of salaries, benefits and other related costs, including stock-based compensation, for personnel serving in our research and development functions, including medical affairs and program management. R&D expenses also includes other internal operating expenses, the cost of manufacturing product candidates, including the medical devices for drug delivery, for clinical study, the cost of conducting clinical studies, and the cost of conducting preclinical and research activities. In addition, R&D expenses include payments to third parties for the license rights to products in development (prior to marketing approval), such as brensocatib. Our R&D expenses related to manufacturing our product candidates and medical devices for clinical study are primarily related to activities at CMOs that manufacture brensocatib, TPIP and early-stage research activities. Our R&D expenses related to clinical trials are primarily related to activities at contract research organizations (CROs) that conduct and manage clinical trials on our behalf. These contracts with CROs set forth the scope of work to be completed at a fixed fee or amount per patient enrolled. Payments under these contracts with CROs primarily depend on performance criteria such as the successful enrollment of patients or the completion of clinical trial milestones as well as time-based fees. Expenses are accrued based on contracted amounts applied to the level of patient enrollment and to activity according to the clinical trial protocol. Deposits for goods or services that will be used or rendered for future research and development activities are deferred and capitalized. Such amounts are then recognized as an expense as the related goods are delivered or the services are performed.
Selling, General and Administrative (SG&A) Expenses
SG&A expenses consist of salaries, benefits and other related costs, including stock-based compensation, for our non-employee directors and personnel serving in our executive, finance and accounting, legal and compliance, commercial and pre-commercial, corporate development, field sales, information technology and human resource functions. SG&A expenses also include professional fees for legal services, consulting services, including commercial activities, insurance, board of director fees, tax and accounting services and certain milestones related to ARIKAYCE.
Amortization of Intangible Assets
Upon commercialization of ARIKAYCE, our intangible assets began to be amortized over their estimated useful lives. The fair values assigned to our intangible assets are based on estimates and assumptions we believe are reasonable based on available facts and circumstances. Unanticipated events or circumstances may occur that require us to review the assets for impairment.
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Change in Fair Value of Deferred and Contingent Consideration Liabilities
In connection with our Business Acquisition, we recorded deferred and contingent consideration liabilities related to potential future milestone payments. Adjustments to the fair value are due to changes in: the probability of achieving milestones; our stock price; or certain other estimated assumptions. The change in fair value of deferred and contingent consideration liabilities is calculated quarterly with gains and losses recorded in the consolidated statements of comprehensive loss.
Investment Income and Interest Expense
Investment income consists of interest and dividend income earned on our cash and cash equivalents and marketable securities. Interest expense consists primarily of contractual interest costs, Royalty Financing Agreement non-cash interest expense and the amortization of debt issuance costs related to our debt. Debt issuance costs are amortized to interest expense using the effective interest rate method over the term of the debt. Our balance sheet reflects debt, net of the debt discount, debt issuance costs paid to the lender, and other third-party costs. Unamortized debt issuance costs associated with extinguished debt are expensed in the period of the extinguishment.
Change in Fair Value of Interest Rate Swap
We record derivative and hedge transactions in accordance with GAAP. In the fourth quarter of 2022, we entered into an interest rate swap contract (the Swap Contract) with a notional value of $350 million to economically hedge our variable rate-based term debt for three years, effectively changing the variable rate under the term debt to a fixed interest rate. Our interest rate swap has not been designated as a hedging instrument for accounting purposes. Consequently, all changes in the fair value of the Swap Contract are reported as a component of net loss in the consolidated statements of comprehensive loss.
RESULTS OF OPERATIONS
Comparison of the Three Months Ended June 30, 2023 and 2022
Overview - Operating Results
Our operating results for the three months ended June 30, 2023, included the following:
•Product revenues, net, increased $12.0 million, or 18.4%, as compared to the same period in the prior year as a result of the growth in ARIKAYCE sales;
•Cost of product revenues (excluding amortization of intangible assets) increased $0.2 million as compared to the same period in the prior year as a result of the increase in sales volumes of ARIKAYCE;
•R&D expenses increased $108.4 million as compared to the same period in the prior year primarily resulting from the non-cash cost of the Adrestia acquisition;
•SG&A expenses increased $24.5 million as compared to the same period in the prior year resulting primarily from increases in professional fees and other external expenses;
•Amortization of intangible assets of $1.3 million was consistent with the same period in the prior year;
•Change in fair value of deferred and contingent consideration liabilities increased $26.1 million, primarily as a result of the change in our share price; and
•Interest expense increased $17.3 million as compared to the same period in the prior year due to entering into the Term Loan and Royalty Financing Agreement in the fourth quarter of 2022.
Product Revenues, Net
Product revenues, net, consists of net sales of ARIKAYCE. The following table summarizes revenue by geography for the three months ended June 30, 2023 and 2022 (in thousands):
| Three Months Ended June 30, | Increase (decrease) | ||||||||||||||||||||||||||||
| 2023 | 2022 | $ | % | ||||||||||||||||||||||||||
| US | $ | 57,665 | $ | 47,190 | $ | 10,475 | 22.2% | ||||||||||||||||||||||
| Japan | 15,593 | 15,849 | (256) | (1.6)% | |||||||||||||||||||||||||
| Europe and rest of world | 3,971 | 2,182 | 1,789 | 82.0% | |||||||||||||||||||||||||
| Total product revenues, net | $ | 77,229 | $ | 65,221 | $ | 12,008 | 18.4% | ||||||||||||||||||||||
Product revenues, net, for the three months ended June 30, 2023 increased to $77.2 million as compared to $65.2 million in the same period in 2022, an increase of 18.4% as a result of growth in ARIKAYCE sales in the US and Europe and the rest of the world.
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Cost of Product Revenues (excluding amortization of intangible assets)
Cost of product revenues (excluding amortization of intangible assets) for the three months ended June 30, 2023 and 2022 were comprised of the following (in thousands):
| Three Months Ended June 30, | Increase (decrease) | ||||||||||||||||||||||
| 2023 | 2022 | $ | % | ||||||||||||||||||||
| Cost of product revenues (excluding amortization of intangible assets) | $ | 16,594 | $ | 16,395 | $ | 199 | 1.2 | % | |||||||||||||||
| Cost of product revenues, as % of revenues | 21.5 | % | 25.1 | % | |||||||||||||||||||
Cost of product revenues (excluding amortization of intangible assets) increased by $0.2 million, or 1.2%, to $16.6 million for the three months ended June 30, 2023 as compared to $16.4 million in the same period in 2022. The increase in cost of product revenues (excluding amortization of intangibles) for the three months ended June 30, 2023 was primarily attributable to the increase in product revenues discussed above.
R&D Expenses
R&D expenses for the three months ended June 30, 2023 and 2022 were comprised of the following (in thousands):
| Three Months Ended June 30, | Increase (decrease) | ||||||||||||||||||||||
| 2023 | 2022 | $ | % | ||||||||||||||||||||
| External Expenses | |||||||||||||||||||||||
| Clinical development and research | $ | 45,275 | $ | 31,333 | $ | 13,942 | 44.5 | % | |||||||||||||||
| Adrestia non-cash asset acquisition | 76,497 | — | 76,497 | NA | |||||||||||||||||||
| Manufacturing | 18,161 | 13,922 | 4,239 | 30.4 | % | ||||||||||||||||||
| Regulatory, quality assurance, and medical affairs | 4,964 | 5,993 | (1,029) | (17.2) | % | ||||||||||||||||||
| Subtotal—external expenses | $ | 144,897 | $ | 51,248 | $ | 93,649 | 182.7 | % | |||||||||||||||
| Internal Expenses | |||||||||||||||||||||||
| Compensation and benefit related expenses | $ | 32,413 | $ | 24,469 | $ | 7,944 | 32.5 | % | |||||||||||||||
| Stock-based compensation | 8,787 | 6,647 | 2,140 | 32.2 | % | ||||||||||||||||||
| Other internal operating expenses | 10,872 | 6,163 | 4,709 | 76.4 | % | ||||||||||||||||||
| Subtotal—internal expenses | $ | 52,072 | $ | 37,279 | $ | 14,793 | 39.7 | % | |||||||||||||||
| Total R&D expenses | $ | 196,969 | $ | 88,527 | $ | 108,442 | 122.5 | % | |||||||||||||||
R&D expenses increased to $197.0 million during the three months ended June 30, 2023 from $88.5 million in the same period in 2022. The $108.4 million increase in R&D expenses was primarily attributable to the $76.5 million non-cash cost of the Adrestia acquisition (see Note 16 - Acquisitions), a $13.9 million increase in clinical development and research expenses to support the ongoing Phase 3 ASPEN trial of brensocatib and the ARIKAYCE MAC lung disease clinical trial program and a $10.1 million increase in compensation and benefit related expenses and stock-based compensation costs due to an increase in headcount.
External R&D expenses by product for the three months ended June 30, 2023 and 2022 were comprised of the following (in thousands):
| Three Months Ended June 30, | Increase (decrease) | ||||||||||||||||||||||
| 2023 | 2022 | $ | % | ||||||||||||||||||||
| ARIKAYCE external R&D expenses | $ | 15,373 | $ | 17,131 | $ | (1,758) | (10.3) | % | |||||||||||||||
| Brensocatib external R&D expenses | 26,739 | 20,404 | 6,335 | 31.0 | % | ||||||||||||||||||
| Adrestia non-cash asset acquisition | 76,497 | — | 76,497 | NA | |||||||||||||||||||
| Other external R&D expenses | 26,288 | 13,713 | 12,575 | 91.7 | % | ||||||||||||||||||
| Total external R&D expenses | $ | 144,897 | $ | 51,248 | $ | 93,649 | 182.7 | % | |||||||||||||||
We expect R&D expenses to continue to increase in 2023 relative to 2022 primarily due to our clinical trial activities and related spend, including our Phase 3 ASPEN trial of brensocatib, our confirmatory clinical trial of ARIKAYCE in a treatment setting for patients with MAC lung disease and our TPIP clinical trials and our research efforts in early stage research.
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SG&A Expenses
SG&A expenses for the three months ended June 30, 2023 and 2022 were comprised of the following (in thousands):
| Three Months Ended June 30, | Increase (decrease) | ||||||||||||||||||||||||||||
| 2023 | 2022 | $ | % | ||||||||||||||||||||||||||
| Compensation and benefit related expenses | $ | 27,769 | $ | 22,047 | $ | 5,722 | 26.0 | % | |||||||||||||||||||||
| Stock-based compensation | 9,571 | 7,612 | 1,959 | 25.7 | % | ||||||||||||||||||||||||
| Professional fees and other external expenses | 36,198 | 21,434 | 14,764 | 68.9 | % | ||||||||||||||||||||||||
| Facility related and other internal expenses | 10,893 | 8,881 | 2,012 | 22.7 | % | ||||||||||||||||||||||||
| Total SG&A expenses | $ | 84,431 | $ | 59,974 | $ | 24,457 | 40.8 | % | |||||||||||||||||||||
SG&A expenses increased to $84.4 million during the three months ended June 30, 2023 from $60.0 million in the same period in 2022. The $24.5 million increase resulted primarily from a $14.8 million increase in professional fees and other external expenses driven by commercial readiness activities for brensocatib. The increase was also due in part to a $7.7 million increase in compensation and benefit related expenses and stock-based compensation costs due to an increase in headcount. We expect SG&A expenses to continue to increase in 2023 relative to 2022 due, in part, to commercial readiness activities for brensocatib.
Amortization of Intangible Assets
Amortization of intangible assets for both the three months ended June 30, 2023 and 2022 was $1.3 million. Amortization of intangible assets is comprised of amortization of acquired ARIKAYCE R&D and amortization of the milestones paid to PARI for the FDA and EC approvals of ARIKAYCE.
Change in Fair Value of Deferred and Contingent Consideration Liabilities
The change in fair value of deferred and contingent consideration for the three months ended June 30, 2023 was $13.5 million. The change is related to the fair value of the potential future consideration to be paid to former equityholders of the businesses we acquired. Adjustments to the fair value are due to changes in: the probability of achieving milestones; our stock price; or certain other estimated assumptions.
Investment Income
Investment income increased to $11.2 million for the three months ended June 30, 2023 as compared to $0.8 million in the same period in 2022 due to the increase in marketable securities balance as of June 30, 2023 relative to 2022.
Interest Expense
Interest expense increased to $20.6 million for the three months ended June 30, 2023 as compared to $3.4 million in the same period in 2022 primarily due to entering into the Term Loan and Royalty Financing Agreement in the fourth quarter of 2022. See Note 10 - Debt and Note 11 - Royalty Financing Agreement for further details.
Change in Fair Value of Interest Rate Swap
The change in fair value of interest rate swap for the three months ended June 30, 2023 was $1.2 million. Adjustments to the fair value are due to changes in interest rates as of June 30, 2023 relative to the fair value of interest rate swap as of December 31, 2022.
Comparison of the Six Months Ended June 30, 2023 and 2022
Overview - Operating Results
Our operating results for the six months ended June 30, 2023, included the following:
•Product revenues, net, increased $24.1 million, or 20.4%, as compared to the same period in the prior year as a result of the growth in ARIKAYCE sales;
•Cost of product revenues (excluding amortization of intangible assets) increased $1.8 million as compared to the same period in the prior year as a result of the increase in sales volumes of ARIKAYCE;
•R&D expenses increased $152.0 million as compared to the same period in the prior year primarily resulting from the non-cash costs of the Adrestia and Vertuis acquisitions;
•SG&A expenses increased $47.6 million as compared to the same period in the prior year resulting primarily from increases in professional fees and other external expenses;
•Amortization of intangible assets of $2.5 million was consistent with the same period in the prior year;
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•Change in fair value of deferred and contingent consideration liabilities increased $28.2 million, primarily as a result of the change in our share price; and
•Interest expense increased $34.0 million as compared to the same period in the prior year due to entering into the Term Loan and Royalty Financing Agreement in the fourth quarter of 2022.
Product Revenues, Net
Product revenues, net, consists of net sales of ARIKAYCE. The following table summarizes revenue by geography for the six months ended June 30, 2023 and 2022 (in thousands):
| Six Months Ended June 30, | Increase (decrease) | ||||||||||||||||||||||||||||
| 2023 | 2022 | $ | % | ||||||||||||||||||||||||||
| US | $ | 106,732 | $ | 87,972 | $ | 18,760 | 21.3% | ||||||||||||||||||||||
| Japan | 28,749 | 26,525 | 2,224 | 8.4% | |||||||||||||||||||||||||
| Europe and rest of world | 6,962 | 3,831 | 3,131 | 81.7% | |||||||||||||||||||||||||
| Total product revenues, net | $ | 142,443 | $ | 118,328 | $ | 24,115 | 20.4% | ||||||||||||||||||||||
Product revenues, net, for the six months ended June 30, 2023 increased to $142.4 million as compared to $118.3 million in the same period in 2022, an increase of 20.4% as a result of growth in ARIKAYCE sales in the US, Japan and Europe and the rest of the world.
Cost of Product Revenues (excluding amortization of intangible assets)
Cost of product revenues (excluding amortization of intangible assets) for the six months ended June 30, 2023 and 2022 were comprised of the following (in thousands):
| Six Months Ended June 30, | Increase (decrease) | ||||||||||||||||||||||
| 2023 | 2022 | $ | % | ||||||||||||||||||||
| Cost of product revenues (excluding amortization of intangible assets) | $ | 30,424 | $ | 28,586 | $ | 1,838 | 6.4 | % | |||||||||||||||
| Cost of product revenues, as % of revenues | 21.4 | % | 24.2 | % | |||||||||||||||||||
Cost of product revenues (excluding amortization of intangible assets) increased by $1.8 million, or 6.4%, to $30.4 million for the six months ended June 30, 2023 as compared to $28.6 million in the same period in 2022. The increase in cost of product revenues (excluding amortization of intangibles) in the six months ended June 30, 2023 was primarily attributable to the increase in product revenues discussed above.
R&D Expenses
R&D expenses for the six months ended June 30, 2023 and 2022 were comprised of the following (in thousands):
| Six Months Ended June 30, | Increase (decrease) | ||||||||||||||||||||||
| 2023 | 2022 | $ | % | ||||||||||||||||||||
| External Expenses | |||||||||||||||||||||||
| Clinical development and research | $ | 88,413 | $ | 64,434 | $ | 23,979 | 37.2 | % | |||||||||||||||
| Adrestia and Vertuis non-cash asset acquisitions | 86,747 | — | 86,747 | NA | |||||||||||||||||||
| Manufacturing | 31,773 | 24,295 | 7,478 | 30.8 | % | ||||||||||||||||||
| Regulatory, quality assurance, and medical affairs | 15,294 | 10,989 | 4,305 | 39.2 | % | ||||||||||||||||||
| Subtotal—external expenses | $ | 222,227 | $ | 99,718 | $ | 122,509 | 122.9 | % | |||||||||||||||
| Internal Expenses | |||||||||||||||||||||||
| Compensation and benefit related expenses | $ | 65,649 | $ | 48,964 | $ | 16,685 | 34.1 | % | |||||||||||||||
| Stock-based compensation | 16,686 | 12,262 | 4,424 | 36.1 | % | ||||||||||||||||||
| Other internal operating expenses | 20,272 | 11,939 | 8,333 | 69.8 | % | ||||||||||||||||||
| Subtotal—internal expenses | $ | 102,607 | $ | 73,165 | $ | 29,442 | 40.2 | % | |||||||||||||||
| Total R&D expenses | $ | 324,834 | $ | 172,883 | $ | 151,951 | 87.9 | % | |||||||||||||||
R&D expenses increased to $324.8 million during the six months ended June 30, 2023 from $172.9 million in the same period in 2022. The $152.0 million increase was primarily due to the $86.7 million non-cash cost of the Adrestia and
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Vertuis acquisitions, a $24.0 million increase in clinical development and research expenses to support the ongoing Phase 3 ASPEN trial of brensocatib and the ARIKAYCE MAC lung disease clinical trial program and an $21.1 million increase in compensation and benefit related expenses and stock-based compensation costs due to an increase in headcount.
External R&D expenses by product for the six months ended June 30, 2023 and 2022 were comprised of the following (in thousands):
| Six Months Ended June 30, | Increase (decrease) | ||||||||||||||||||||||
| 2023 | 2022 | $ | % | ||||||||||||||||||||
| ARIKAYCE external R&D expenses | $ | 33,622 | $ | 33,809 | $ | (187) | (0.6) | % | |||||||||||||||
| Brensocatib external R&D expenses | 53,274 | 42,130 | 11,144 | 26.5 | % | ||||||||||||||||||
| Non-cash asset acquisitions | 86,747 | — | 86,747 | NA | |||||||||||||||||||
| Other external R&D expenses | 48,584 | 23,779 | 24,805 | 104.3 | % | ||||||||||||||||||
| Total external R&D expenses | $ | 222,227 | $ | 99,718 | $ | 122,509 | 122.9 | % | |||||||||||||||
We expect R&D expenses to continue to increase in 2023 relative to 2022 primarily due to our clinical trial activities and related spend, including our Phase 3 ASPEN trial of brensocatib, our confirmatory clinical trial of ARIKAYCE in a treatment setting for patients with MAC lung disease, our TPIP clinical trials and our research efforts in early stage research.
SG&A Expenses
SG&A expenses for the six months ended June 30, 2023 and 2022 were comprised of the following (in thousands):
| Six Months Ended June 30, | Increase (decrease) | ||||||||||||||||||||||||||||
| 2023 | 2022 | $ | % | ||||||||||||||||||||||||||
| Compensation and benefit related expenses | $ | 56,164 | $ | 45,000 | $ | 11,164 | 24.8 | % | |||||||||||||||||||||
| Stock-based compensation | 18,116 | 14,818 | 3,298 | 22.3 | % | ||||||||||||||||||||||||
| Professional fees and other external expenses | 66,164 | 41,175 | 24,989 | 60.7 | % | ||||||||||||||||||||||||
| Facility related and other internal expenses | 23,901 | 15,729 | 8,172 | 52.0 | % | ||||||||||||||||||||||||
| Total SG&A expenses | $ | 164,345 | $ | 116,722 | $ | 47,623 | 40.8 | % | |||||||||||||||||||||
SG&A expenses increased to $164.3 million during the six months ended June 30, 2023 from $116.7 million in the same period in 2022. The $47.6 million increase resulted primarily from a $25.0 million increase in professional fees and other external expenses driven by commercial readiness activities for brensocatib. The increase was also due to a $14.5 million increase in compensation and benefit related expenses and stock-based compensation costs due to an increase in headcount. We expect SG&A expenses to continue to increase in 2023 relative to 2022 due, in part, to commercial readiness activities for brensocatib.
Amortization of Intangible Assets
Amortization of intangible assets for both the six months ended June 30, 2023 and 2022 was $2.5 million. Amortization of intangible assets is comprised of amortization of acquired ARIKAYCE R&D and amortization of the milestones paid to PARI for the FDA and EC approvals of ARIKAYCE.
Change in Fair Value of Deferred and Contingent Consideration Liabilities
The change in fair value of deferred and contingent consideration for the six months ended June 30, 2023 was $4.0 million. The change is related to the fair value of the potential future consideration to be paid to former equityholders of the businesses we acquired. Adjustments to the fair value are due to changes in: the probability of achieving milestones; our stock price; or certain other estimated assumptions.
Investment Income
Investment income increased to $21.7 million for the six months ended June 30, 2023 as compared to $1.0 million in the same period in 2022 due to the increase in marketable securities balance as of June 30, 2023 relative to 2022.
Interest Expense
Interest expense increased to $40.6 million for the six months ended June 30, 2023 as compared to $6.6 million in the same period in 2022 due primarily to entering into the Term Loan and Royalty Financing Agreement in the fourth quarter of 2022. See Note 10 - Debt and Note 11 - Royalty Financing Agreement for further details.
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Change in Fair Value of Interest Rate Swap
The change in fair value of interest rate swap for the six months ended June 30, 2023 was $0.3 million. Adjustments to the fair value are due to changes in interest rates as of June 30, 2023 relative to the fair value of interest rate swap as of December 31, 2022.
LIQUIDITY AND CAPITAL RESOURCES
Overview
There is considerable time and cost associated with developing potential pharmaceutical products to the point of regulatory approval and commercialization. We commenced commercial shipments of ARIKAYCE in October 2018. We expect to continue to incur consolidated operating losses, including losses at our US and certain international entities, as we plan to fund R&D for ARIKAYCE, brensocatib, TPIP and our other pipeline programs, continue commercialization and regulatory activities for ARIKAYCE, fund pre-commercialization activities for brensocatib, and engage in other general and administrative activities.
During the three months ended June 30, 2023, we issued and sold an aggregate of 2,000,000 shares of common stock through our ATM program at a weighted-average public offering price of $19.35 per share and received net proceeds of $37.5 million. As of June 30, 2023, an aggregate of $176.9 million of shares of common stock remain available to be issued and sold under the ATM program.
In October 2022, we entered into the $350 million Term Loan with Pharmakon that matures on October 19, 2027. The Term Loan bears interest at a rate based upon the SOFR, subject to a SOFR floor of 2.5% in addition to a margin of 7.75% per annum. Up to 50% of the interest payable during the first 24 months from the closing of the Term Loan may be paid-in-kind at our election. If elected, paid-in-kind interest will be capitalized and added to the principal amount of the Term Loan. The Term Loan, including the paid-in-kind interest, will be repaid in eight equal quarterly payments starting in the 13th quarter following the closing of the Term Loan (i.e., the quarter ending March 31, 2026), except that the repayment start date may be extended at our option for an additional four quarters, so that repayments start in the 17th quarter following the closing of the Term Loan, subject to the achievement of specified ARIKAYCE data thresholds and certain other conditions. Net proceeds from the Term Loan, after deducting the lenders' fees and deal expenses of $15.2 million, were $334.8 million.
In October 2022, we entered into the Royalty Financing Agreement with OrbiMed, whereby OrbiMed paid us $150 million in exchange for the right to receive, on a quarterly basis, royalties in an amount equal to 4% of ARIKAYCE global net sales prior to September 1, 2025 and 4.5% of ARIKAYCE global net sales on or after September 1, 2025, as well as 0.75% of brensocatib global net sales, if approved. In the event that OrbiMed has not received aggregate Revenue Interest Payments equal to or greater than $150 million on or prior to March 31, 2028, the royalty rate for ARIKAYCE will be increased for all subsequent fiscal quarters to a rate which, if applied retroactively, would have resulted in aggregate Revenue Interest Payments to OrbiMed for all fiscal quarters ended on or prior to March 31, 2028 equal to $150 million. In addition, we must make a one-time payment to OrbiMed in an amount that, when added to the aggregate amount of Revenue Interest Payments received by OrbiMed as of March 31, 2028, would equal $150 million. The total Revenue Interest Payments payable by us to OrbiMed are capped at 1.8x of the purchase price or up to a maximum of 1.9x of the purchase price under certain conditions. Net proceeds from the Royalty Financing Agreement, after deducting the lenders fees and deal expenses of $3.8 million, were $146.2 million.
In October 2022, we also completed an underwritten offering of 13,750,000 shares of our common stock at a public offering price of $20.00 per share. Our net proceeds from the sale of the shares, after deducting the underwriting discounts and offering expense of $16.2 million, were $258.8 million.
We may need to raise additional capital to fund our operations, the continued commercialization of ARIKAYCE, launch readiness activities for the potential launch of brensocatib for the treatment of patients with bronchiectasis, if approved, clinical trials for brensocatib, TPIP, and our future product candidates, and to develop, acquire, in-license or co-promote other products or product candidates, including those that address serious or rare diseases. While we believe we currently have sufficient funds to meet our financial needs for at least the next 12 months, we may opportunistically raise additional capital and may do so through equity or debt financing(s), strategic transactions or otherwise. Our cash requirements for the next 12 months will be impacted by a number of factors, the most significant of which we expect to be the ASPEN trial, expenses related to our commercialization efforts and our ARISE and ENCORE clinical trials for ARIKAYCE, and other development activities for brensocatib, and to a lesser extent, expenses related to the clinical development of TPIP and our early-research programs.
Cash Flows
As of June 30, 2023, we had cash and cash equivalents of $612.9 million, as compared with $1,074.0 million as of December 31, 2022. In addition, as of June 30, 2023, we had marketable securities of $304.9 million as compared with $74.2 million as of December 31, 2022. The $461.2 million decrease in cash and cash equivalents was primarily due to the purchase
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of marketable securities and cash used in operating activities. Our working capital was $848.2 million as of June 30, 2023, as compared with $1,083.1 million as of December 31, 2022.
Net cash used in operating activities was $269.1 million and $207.5 million for the six months ended June 30, 2023 and 2022, respectively. The net cash used in operating activities during the six months ended June 30, 2023 and 2022 was primarily for the commercial, clinical and manufacturing activities related to ARIKAYCE, as well as other SG&A expenses and clinical trial expenses related to brensocatib and TPIP. The increase in cash used in operating activities for the six months ended June 30, 2023 compared to the corresponding period in 2022 was primarily due to the increase in net loss, excluding the adjustments to reconcile net loss to net cash used in operating activities.
Net cash used in investing activities was $232.6 million and $104.3 million for the six months ended June 30, 2023 and 2022, respectively. The increase in 2023 is due to purchases of marketable securities in six months ended June 30, 2023.
Net cash provided by financing activities was $43.9 million and $12.8 million for the six months ended June 30, 2023 and 2022, respectively. The increase in 2023 is due to proceeds received from the ATM program in the six months ended June 30, 2023.
Contractual Obligations
There were no material changes outside of the ordinary course of business in our contractual obligations during the six months ended June 30, 2023 from those disclosed in Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Contractual Obligations” in our Annual Report on Form 10-K for the year ended December 31, 2022.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements that have or are reasonably likely to have a current or future material effect on our financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources. We do not have any interest in special purpose entities, structured finance entities or other variable interest entities.
CRITICAL ACCOUNTING ESTIMATES
There have been no material changes to our critical accounting policies and estimates as disclosed in our Annual Report on Form 10-K for the year ended December 31, 2022. For the required interim disclosure updates related to our accounting policies and estimates, see Note 2 — Summary of Significant Accounting Policies in this Quarterly Report on Form 10-Q.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
As of June 30, 2023, our cash and cash equivalents were in cash accounts and money market funds. Our investments in money market funds are not insured by the federal government. As of June 30, 2023, our marketable securities were invested in US treasury notes with an original maturity of greater than 90 days.
As of June 30, 2023, we had $800.0 million of convertible notes outstanding. Our 2025 Convertible Notes and our 2028 Convertible Notes bear interest at a coupon rate of 1.75% and 0.75%, respectively. In addition, as of June 30, 2023, we had a $350 million Term Loan and a $150.0 million Royalty Financing Agreement outstanding. The Term Loan accrues interest quarterly at the SOFR subject to a floor of 2.5%, plus a margin of 7.75% per annum. We entered into the Swap Contract as a hedge to the Term Loan variable interest rate. The Royalty Financing Agreement pays interest at 4% of ARIKAYCE global net sales prior to September 1, 2025 and 4.5% thereafter as well as 0.75% of brensocatib global net sales, if approved. If a 10% change in interest rates had occurred on June 30, 2023, it would not have had a material effect on the fair value of our debt as of that date, nor would it have a material effect on our future earnings or cash flows.
The majority of our business is conducted in US dollars. However, we do conduct certain transactions in other currencies, including Euros, British Pounds, and Japanese Yen. Historically, fluctuations in foreign currency exchange rates have not materially affected our results of operations and during the six months ended June 30, 2023 and 2022, our results of operations were not materially affected by fluctuations in foreign currency exchange rates.
ITEM 4. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
Our management, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures as of June 30, 2023. The term “disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Securities and Exchange Act of 1934, as amended (the Exchange Act), means controls and other procedures that are designed to ensure that information required to be disclosed by us in the reports that we file or submit with the SEC is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms, and to ensure that such information is accumulated and communicated to our
44
management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure. Based on that evaluation as of June 30, 2023, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures were effective at the reasonable assurance level.
Changes in Internal Control Over Financial Reporting
There were no changes in our internal control over financial reporting (as defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act) during the quarter ended June 30, 2023 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
From time to time, we are party to various lawsuits, claims and other legal proceedings that arise in the ordinary course of our business. While the outcomes of these matters are uncertain, management does not expect that the ultimate costs to resolve these matters will have a material adverse effect on our consolidated financial position, results of operations or cash flows.
ITEM 1A. RISK FACTORS
Our business is subject to substantial risks and uncertainties. You should carefully consider the information contained in this Quarterly Report on Form 10-Q and the risk factors and other information contained in our other public filings in evaluating our business, including our Annual Report on Form 10-K for the year ended December 31, 2022, which was filed with the SEC on February 23, 2023. Any of the risks and uncertainties described herein and in our other filings with the SEC, either alone or taken together, could materially and adversely affect our business, financial condition, results of operations, prospects for growth, and the value of an investment in our common stock. In addition, these risks and uncertainties could cause actual results to differ materially from those expressed or implied by forward-looking statements contained in this Form 10-Q (please read the Cautionary Note Regarding Forward-Looking Statements in this Form 10-Q).
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
On June 30, 2023, the Company acquired Adrestia, a privately held, preclinical stage company. In connection with the transaction, the Company issued an aggregate of 3,430,867 shares of the Company’s common stock to the Adrestia shareholders at an agreed price per share of $20. The shares of the Company’s common stock issued to the Adrestia shareholders were issued pursuant to Section 4(a)(2) of the Securities Act of 1933 (and, with respect to certain Adrestia shareholders, in reliance on Regulation S promulgated under the Securities Act of 1933). In connection with the transaction, the Company purchased for cash the Adrestia shares held by certain Adrestia shareholders, which consideration was automatically applied to purchase the shares of Company’s common stock to which such Adrestia shareholders were entitled in the transaction. The Company did not receive any net proceeds from the issuance of common stock to the Adrestia shareholders.
ITEM 5. OTHER INFORMATION
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ITEM 6. EXHIBITS
Exhibit Index
| Articles of Incorporation of Insmed Incorporated, as amended through June 14, 2012 (incorporated by reference from Exhibit 3.1 to Insmed Incorporated’s Annual Report on Form 10-K filed on March 18, 2013). | ||||||||
| Amended and Restated Bylaws of Insmed Incorporated (incorporated by reference from Exhibit 3.1 to Insmed Incorporated’s Current Report on Form 8-K filed on March 30, 2020). | ||||||||
10.1* | Insmed Incorporated Amended and Restated 2019 Incentive Plan (incorporated by reference from Appendix A to Insmed Incorporated’s Proxy Statement on Schedule 14A, filed on March 31, 2023). | |||||||
| Form of Award Agreement for Non-Qualified Stock Options pursuant to the Insmed Incorporated Amended and Restated 2019 Incentive Plan. | ||||||||
| Form of Award Agreement for Non-Qualified Stock Options to non-US employees pursuant to the Insmed Incorporated Amended and Restated 2019 Incentive Plan. | ||||||||
| Form of Award Agreement for Restricted Stock Units pursuant to the Insmed Incorporated Amended and Restated 2019 Incentive Plan. | ||||||||
| Form of Award Agreement for Restricted Stock Units to non-US employees pursuant to the Insmed Incorporated Amended and Restated 2019 Incentive Plan. | ||||||||
| Form of Award Agreement for Restricted Stock Units issued to directors pursuant to the Insmed Incorporated amended and Restated 2019 Incentive Plan. | ||||||||
| Form of Award Agreement for Performance-Based Restricted Stock Units pursuant to the Insmed Incorporated amended and Restated 2019 Incentive Plan. | ||||||||
| Form of Award Agreement for Performance-Based Restricted Stock Units to non-US employees pursuant to the Insmed Incorporated amended and Restated 2019 Incentive Plan. | ||||||||
| Certification of William H. Lewis, Chair and Chief Executive Officer (Principal Executive Officer) of Insmed Incorporated, pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes Oxley Act of 2002. | ||||||||
| Certification of Sara Bonstein, Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) of Insmed Incorporated, pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes Oxley Act of 2002. | ||||||||
| Certification of William H. Lewis, Chair and Chief Executive Officer (Principal Executive Officer) of Insmed Incorporated, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes Oxley Act of 2002. | ||||||||
| Certification of Sara Bonstein, Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) of Insmed Incorporated, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes Oxley Act of 2002. | ||||||||
| 101 | The following materials from Insmed Incorporated’s quarterly report on Form 10-Q for the quarter ended June 30, 2023 formatted in iXBRL (Inline eXtensible Business Reporting Language): (i) Consolidated Balance Sheets as of June 30, 2023 and December 31, 2022, (ii) Consolidated Statements of Comprehensive Loss for the three and six months ended June 30, 2023 and 2022, (iii) Consolidated Statements of Shareholders' Equity for the three and six months ended June 30, 2023 and 2022, (iv) Consolidated Statements of Cash Flows for the six months ended June 30, 2023 and 2022, (v) Notes to the Unaudited Consolidated Financial Statements, and (vi) Cover Page. | |||||||
| 104 | The cover page from the Quarterly Report on Form 10-Q for the quarter ended June 30, 2023, formatted in iXBRL and contained in Exhibit 101. | |||||||
| * Management contract or compensatory plan or arrangement. | ||||||||
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| INSMED INCORPORATED | ||||||||
| Date: August 3, 2023 | By | /s/ Sara Bonstein | ||||||
| Sara Bonstein | ||||||||
| Chief Financial Officer | ||||||||
| (Principal Financial and Accounting Officer) | ||||||||
47
INSMED INCORPORATED
NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE AMENDED AND RESTATED 2019 INCENTIVE PLAN
FOR U.S. PARTICIPANTS
No. of shares subject to Option: /$AwardsGranted$/
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this “Agreement”) dated this /$GrantDate$/, between INSMED INCORPORATED, a Virginia corporation (the "Company"), and /$ParticipantName$/ ("Participant"), is made pursuant and subject to the provisions of the Insmed Incorporated Amended and Restated 2019 Incentive Plan, as amended (the "Plan"), a copy of which has been made available to Participant. All terms used herein that are defined in the Plan have the same meaning given them in the Plan.
If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of any employment, consulting or similar services agreement between Participant and the Company (or any of its Affiliates, as applicable) as may be in effect (the “Service Agreement”), the Service Agreement shall control, and this Agreement shall be deemed to be modified accordingly so long as such modification is not expressly prohibited by the Plan.
1.Grant of Option. Pursuant to the Plan, the Company, on /$GrantDate$/ (the "Date of Grant"), granted to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth, the right and Option to purchase from the Company all or any part of an aggregate of /$AwardsGranted$/ shares of Common Stock at the Option price of /$GrantPrice$/ per share, being not less than the Fair Market Value of such shares on the Date of Grant. This Option is intended to be a nonqualified stock option and not an "incentive stock option" within the meaning of Section 422 of the Code. This Option is exercisable as hereinafter provided.
2.Terms and Conditions. This Option is subject to the following terms and conditions:
a.Expiration Date. This Option shall expire ten years from the Date of Grant (the "Expiration Date").
b.Exercise of Option. Except as provided in paragraphs 3, 4 and 5, this Option shall be exercisable with respect to twenty-five percent (25%) of the shares of Common Stock subject to this Option on the first annual anniversary of the Date of Grant (the “First Anniversary Date”) and with respect to an additional twelve and a half percent (12.5%) of the shares of Common Stock subject to this Option on the six-month anniversary of the First Anniversary Date and each six-month anniversary date thereafter through the fourth annual anniversary of the Date of Grant. If the foregoing schedule would produce fractional shares, the number of shares for which the Option becomes exercisable shall be rounded down to the nearest whole share. Once this Option has become exercisable in accordance with the preceding sentence it shall continue to be exercisable until the termination of Participant's rights hereunder pursuant to paragraph 3, 4 or 5 or until the Option has expired pursuant to subparagraph 2(a). A partial exercise of this Option shall not affect Participant's right to exercise this Option with respect to the remaining shares, subject to the conditions of the Plan and this Agreement.
c.Method of Exercising Option and Payment for Shares. This Option shall be exercised by written notice delivered to the attention of the
Company's Chief Financial Officer at the Company's principal office in New Jersey. The exercise date shall be (i) in the case of notice by mail, the date of postmark, or (ii) if delivered in person, the date of delivery. Such notice shall be accompanied by payment of the Option price in full, in cash or cash equivalent acceptable to the Committee, or such other method as determined by the Committee, including an irrevocable commitment by a broker to pay over such amount from a sale of the shares of Common Stock issuable under the Option, the delivery of previously owned shares of Common Stock or withholding of shares of Common Stock deliverable upon exercise which, together with any cash or cash equivalent paid, is not less than the Option price for the number of shares for which this Option is being exercised.
d.Agreement with Terms. Execution of this Agreement by Participant or receipt of any benefits under this Agreement by Participant shall constitute Participant’s acknowledgement of and agreement with all of the provisions of this Agreement and of the Plan that are applicable to this Option, and the Company shall administer this Agreement accordingly.
e.Forfeiture. In the event of Participant’s termination of employment or service, any vested portion of this Option that is not exercised during the period specified in paragraph 3, paragraph 4 or paragraph 5 of this Agreement, as applicable, shall be forfeited upon the expiration of such period. Any portion of this Option that is unvested as of the date of Participant’s termination of employment or service shall be forfeited on such date.
f.Change in Status. A change in the status (whether as employee, member of the Board or other non-employee advisor or service provider) in which Participant renders service to the Company and its Affiliates or a change in the entity for which Participant renders such service shall not constitute a termination of Participant’s employment or service for purposes of this Agreement, so long as there is no interruption or termination of Participant’s services to the Company and its Affiliates; provided, however, that if the entity employing or engaging Participant ceases to be an Affiliate of the Company, as determined by the Administrator, Participant’s employment or service shall be considered to have terminated on the date such entity ceased to be an Affiliate.
3.Exercise in the Event of Death. In the event Participant dies before the expiration of this Option pursuant to subparagraph 2(a), this Option shall be exercisable with respect to all or part of the shares of Common Stock that Participant was entitled to purchase under subparagraph 2(b) on the date of Participant’s death. In that event, this Option may be exercised, to the extent exercisable under subparagraph 2(b), by Participant's estate or by the person or persons to whom his rights under this Option shall pass by will or the laws of descent and distribution. Participant's estate or such persons may exercise this Option within one (1) year after Participant's death or during the remainder of the period preceding the Expiration Date, whichever is shorter.
4.Exercise in the Event of Permanent and Total Disability. In the event Participant becomes permanently and totally disabled within the meaning of Section 22(e)(3) of the Code ("Permanently and Totally Disabled") before the expiration of this Option pursuant to subparagraph 2(a), this Option shall be exercisable with respect to all or part of the shares of Common Stock that Participant was entitled to purchase under subparagraph 2(b) on the date he
ceases to be employed or engaged by the Company and its Affiliates as a result of his becoming Permanently and Totally Disabled. In that event, Participant may exercise this Option, to the extent exercisable under subparagraph 2(b), within one (1) year after the date he ceases to be employed or engaged by the Company and its Affiliates as a result of his becoming Permanently and Totally Disabled or during the period preceding the Expiration Date, whichever is shorter.
5.Exercise After Termination of Employment or Service. Except as provided in paragraphs 3 and 4 hereof, if Participant ceases to be employed or engaged by the Company and its Affiliates prior to the Expiration Date, this Option shall be exercisable for all or part of the number of shares that Participant was entitled to purchase under subparagraph 2(b), as well as set forth under any Service Agreement, on the date of Participant’s termination of employment or service. In that event, Participant may exercise this Option, to the extent exercisable under subparagraph 2(b) and/or under any Service Agreement, during the remainder of the period preceding the Expiration Date or until the date that is three (3) months (or such other period of time provided under any Service Agreement) after the date he ceases to be employed or engaged by the Company and its Affiliates, whichever is shorter.
6.Notice. Any notice or other communication given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the Company at its principal place of business or to Participant at the address on the payroll records of the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing. Additionally, if such notice or communication is by the Company to Participant, the Company may provide such notice electronically (including via email). Any such notice shall be deemed to have been given (a) on the date of postmark, in the case of notice by mail, or (b) on the date of delivery, if delivered in person or electronically.
7.Fractional Shares. Fractional shares shall not be issuable hereunder, and when any provision hereof may entitle Participant to a fractional share such fraction shall be disregarded.
8.Tax Matters.
a.Withholding. Participant shall, not later than the date as of which the receipt of this Award becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, local or other taxes required by law to be withheld on account of such taxable event. The Company shall have no obligation to deliver shares of Common Stock until such withholding requirements have been fully satisfied by Participant.
b.Tax Obligations. Nothing in the Plan or in this Agreement shall be interpreted or construed to transfer any liability for any tax (including, without limitation, a tax or penalty due as a result of a failure to comply with Section 409A of the Code) due by Participant to the Company, any Subsidiary or Affiliate, or to any other individual or entity, and the Company shall have no liability to Participant, or any other party, thereto. Participant acknowledges that the Company and its Subsidiaries and Affiliates: (a) make no representations or undertakings regarding the tax treatment in connection with any aspect of the Option; and (b) do not commit to structure the terms of the grant or any other aspect of the Option to reduce or eliminate Participant’s tax liabilities.
9.No Right to Continued Employment or Other Service. Nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/or its Affiliates to terminate Participant’s employment at any time or for any reason in accordance with the Company’s Bylaws, governing law and any applicable Service Agreement, nor shall any terms of the Plan or this Agreement confer upon Participant any right to continue his or her employment for any specified period of time. Neither this Agreement nor any benefits arising under the Plan or this Agreement shall constitute an employment contract or service contract with the Company, any Subsidiary and/or its Affiliates. If Participant is not an employee, nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/or its Affiliates to terminate Participant’s service, (i) if a member of the Board, on the Board at any time or for any reason in accordance with the Company’s Bylaws and governing law, or (ii) if a non-employee consultant or advisor, in accordance with the terms of the contract with such consultant or advisor. In no event shall any of the terms of the Plan or this Agreement itself confer upon Participant any right to continue his or her service for any specified period of time.
10.Adjustments Upon Certain Unusual or Nonrecurring Events or Other Events. Upon certain unusual or nonrecurring events, or other events, the terms of this Option shall be adjusted by the Administrator pursuant to Section 14 of the Plan.
11.Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia.
12.Conflicts. In the event of any conflict between the provisions of the Plan as in effect on the date hereof and the provisions of this Agreement, the provisions of the Plan shall govern. All references herein to the Plan shall mean the Plan as in effect on the date hereof.
13.Award and Participant Bound by Plan. Notwithstanding anything herein to the contrary, this Option and this Agreement shall be subject to and governed by all the terms and conditions of the Plan. Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof.
14.Binding Effect. Subject to the limitations stated above and in the Plan, this Agreement shall be binding upon and inure to the benefit of the legatees, distributees, and personal representatives of Participant and the successors of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by a duly authorized officer, and Participant has affixed his signature hereto.
INSMED INCORPORATED
By: /s/ Sara Bonstein
Chief Financial Officer
PARTICIPANT
By: /s/ /$ParticipantName$/
INSMED INCORPORATED
NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE AMENDED AND RESTATED 2019 INCENTIVE PLAN
FOR NON-U.S. PARTICIPANTS
No. of shares subject to Option: /$AwardsGranted$/
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this “Agreement”) dated this /$GrantDate$/, between INSMED INCORPORATED, a Virginia corporation (the "Company"), and /$ParticipantName$/ ("Participant"), is made pursuant and subject to the provisions of the Insmed Incorporated Amended and Restated 2019 Incentive Plan, as amended (the "Plan"), a copy of which has been made available to Participant. All terms used herein that are defined in the Plan have the same meaning given them in the Plan.
If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of any employment, consulting or similar services agreement between Participant and the Company (or any of its Affiliates, as applicable) as may be in effect (the “Service Agreement”), the Service Agreement shall control, and this Agreement shall be deemed to be modified accordingly so long as such modification is not expressly prohibited by the Plan.
1.Grant of Option. Pursuant to the Plan, the Company, on /$GrantDate$/ (the "Date of Grant"), granted to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth, the right and Option to purchase from the Company all or any part of an aggregate of /$AwardsGranted$/ shares of Common Stock at the Option price of /$GrantPrice$/ per share, being not less than the Fair Market Value of such shares on the Date of Grant. This Option is intended to be a nonqualified stock option and not an "incentive stock option" within the meaning of Section 422 of the Code. This Option is exercisable as hereinafter provided.
2.Terms and Conditions. This Option is subject to the following terms and conditions:
a.Expiration Date. This Option shall expire ten years from the Date of Grant (the "Expiration Date").
b.Exercise of Option. Except as provided in paragraphs 3, 4 and 5, this Option shall be exercisable with respect to twenty-five percent (25%) of the shares of Common Stock subject to this Option on the first annual anniversary of the Date of Grant (the “First Anniversary Date”) and with respect to an additional twelve and a half percent (12.5%) of the shares of Common Stock subject to this Option on the six-month anniversary of the First Anniversary Date and each six-month anniversary date thereafter through the fourth annual anniversary of the Date of Grant. If the foregoing schedule would produce fractional shares, the number of shares for which the Option becomes exercisable shall be rounded down to the nearest whole share. Once this Option has become exercisable in accordance with the preceding sentence it shall continue to be exercisable until the termination of Participant's rights hereunder pursuant to paragraph 3, 4 or 5 or until the Option has expired pursuant to subparagraph 2(a). A partial exercise of this Option shall not affect Participant's right to exercise this Option with respect to the remaining shares, subject to the conditions of the Plan and this Agreement.
c.Method of Exercising Option and Payment for Shares. This Option shall be exercised by written notice delivered to the attention of the
Company's Chief Financial Officer at the Company's principal office in New Jersey. The exercise date shall be (i) in the case of notice by mail, the date of postmark, or (ii) if delivered in person, the date of delivery. Such notice shall be accompanied by payment of the Option price in full, in cash or cash equivalent acceptable to the Committee, or such other method as determined by the Committee, including an irrevocable commitment by a broker to pay over such amount from a sale of the shares of Common Stock issuable under the Option, the delivery of previously owned shares of Common Stock or withholding of shares of Common Stock deliverable upon exercise which, together with any cash or cash equivalent paid, is not less than the Option price for the number of shares for which this Option is being exercised.
d.Agreement with Terms. Execution of this Agreement by Participant or receipt of any benefits under this Agreement by Participant shall constitute Participant’s acknowledgement of and agreement with all of the provisions of this Agreement and of the Plan that are applicable to this Option, and the Company shall administer this Agreement accordingly.
e.Forfeiture. In the event of Participant’s termination of employment or service, any vested portion of this Option that is not exercised during the period specified in paragraph 3, paragraph 4 or paragraph 5 of this Agreement, as applicable, shall be forfeited upon the expiration of such period. Any portion of this Option that is unvested as of the date of Participant’s termination of employment or service shall be forfeited on such date.
f.Change in Status. A change in the status (whether as employee, member of the Board or other non-employee advisor or service provider) in which Participant renders service to the Company and its Affiliates or a change in the entity for which Participant renders such service shall not constitute a termination of Participant’s employment or service for purposes of this Agreement, so long as there is no interruption or termination of Participant’s services to the Company and its Affiliates; provided, however, that if the entity employing or engaging Participant ceases to be an Affiliate of the Company, as determined by the Administrator, Participant’s employment or service shall be considered to have terminated on the date such entity ceased to be an Affiliate.
3.Exercise in the Event of Death. In the event Participant dies before the expiration of this Option pursuant to subparagraph 2(a), this Option shall be exercisable with respect to all or part of the shares of Common Stock that Participant was entitled to purchase under subparagraph 2(b) on the date of Participant’s death. In that event, this Option may be exercised, to the extent exercisable under subparagraph 2(b), by Participant's estate or by the person or persons to whom his rights under this Option shall pass by will or the laws of descent and distribution. Participant's estate or such persons may exercise this Option within one (1) year after Participant's death or during the remainder of the period preceding the Expiration Date, whichever is shorter.
4.Exercise in the Event of Permanent and Total Disability. In the event Participant becomes permanently and totally disabled within the meaning of Section 22(e)(3) of the Code ("Permanently and Totally Disabled") before the expiration of this Option pursuant to subparagraph 2(a), this Option shall be exercisable with respect to all or part of the shares of Common Stock that Participant was entitled to purchase under subparagraph 2(b) on the date he
2
ceases to be employed or engaged by the Company and its Affiliates as a result of his becoming Permanently and Totally Disabled. In that event, Participant may exercise this Option, to the extent exercisable under subparagraph 2(b), within one (1) year after the date he ceases to be employed or engaged by the Company and its Affiliates as a result of his becoming Permanently and Totally Disabled or during the period preceding the Expiration Date, whichever is shorter.
5.Exercise After Termination of Employment or Service. Except as provided in paragraphs 3 and 4 hereof, if Participant ceases to be employed or engaged by the Company and its Affiliates prior to the Expiration Date, this Option shall be exercisable for all or part of the number of shares that Participant was entitled to purchase under subparagraph 2(b), as well as set forth under any Service Agreement, on the date of Participant’s termination of employment or service. In that event, Participant may exercise this Option, to the extent exercisable under subparagraph 2(b) and/or under any Service Agreement, during the remainder of the period preceding the Expiration Date or until the date that is three (3) months (or such other period of time provided under any Service Agreement) after the date he ceases to be employed or engaged by the Company and its Affiliates, whichever is shorter.
6.Notice. Any notice or other communication given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the Company at its principal place of business or to Participant at the address on the payroll records of the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing. Additionally, if such notice or communication is by the Company to Participant, the Company may provide such notice electronically (including via email). Any such notice shall be deemed to have been given (a) on the date of postmark, in the case of notice by mail, or (b) on the date of delivery, if delivered in person or electronically.
7.Fractional Shares. Fractional shares shall not be issuable hereunder, and when any provision hereof may entitle Participant to a fractional share such fraction shall be disregarded.
8.Tax Responsibility and Withholding. Participant hereby authorizes withholding from payroll and any other amounts payable to Participant, and otherwise agrees to make adequate provision for any sums required to satisfy the federal, state, local and foreign tax (including, without limitation, social insurance contributions or National Insurance Contributions) withholding obligations of the Company and its Affiliates, if any, which arise in connection with the Option including, without limitation, the grant, vesting or exercise of the Option and the subsequent sale of shares of Common Stock (the “Tax Obligations”). The Company shall have no obligation to deliver shares of Common Stock until the Tax Obligations have been fully satisfied by Participant. Participant acknowledges that the ultimate liability for all Tax Obligations legally due by Participant is and remains Participant’s responsibility and that the Company and its Subsidiaries and Affiliates: (a) make no representations or undertakings regarding the Tax Obligations or tax treatment in connection with any aspect of the Option; and (b) do not commit to structure the terms of the grant or any other aspect of the Option to reduce or eliminate Participant’s Tax Obligations or any other tax liabilities. Further, if Participant is subject to Tax Obligations in more than one jurisdiction, Participant acknowledges that the Company and/or the applicable Affiliate may be required to withhold or account for Tax Obligations in more than one jurisdiction. The Company shall have the right, but not the obligation, to require Participant to satisfy all or any portion of the Tax Obligations by deducting from the shares of Common Stock otherwise issuable to Participant upon such exercise a number of whole shares having a fair market value, as determined by the Company as of the date of exercise, not in excess of the amount of such Tax Obligations determined by the applicable minimum statutory withholding rates. The Company may require Participant to direct a broker, upon the exercise of the Option, to sell a portion of the shares subject to the Option determined
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by the Company in its discretion to be sufficient to cover the Tax Obligations of the Company or its Affiliates or subsidiaries and to remit an amount equal to such Tax Obligations to the Company in cash. Depending on the withholding method, the Company or the applicable Affiliate may withhold or account for Tax Obligations by considering applicable statutory withholding amounts or other applicable withholding rates, including maximum applicable rates, in which case Participant will receive a refund of any over-withheld amount in cash and will have no entitlement to the Common Stock equivalent. If the obligation for Tax Obligations is satisfied by withholding shares, for tax purposes, Participant is deemed to have been issued the full number of shares subject to the exercised Option, notwithstanding that a number of the shares are held back solely for the purpose of paying the Tax Obligations. Finally, Participant agrees to pay to the Company and/or the applicable Affiliate any amount of Tax Obligations that the Company and/or the applicable Affiliate may be required to withhold or account for as a result of the Option that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the shares or the proceeds of the sale of shares if Participant fails to comply with Participant’s obligations in connection with the Tax Obligations. Participant authorizes the Company to disclose all information on Participant and his participation in this Agreement that is or may be relevant for the calculation of the Tax Obligations, to the competent local tax authorities and the Company’s Affiliates, including but not limited to the exercise notice, the day such notice was received, the number of shares for which the Option is exercised, the exercise price and the fair market value of the shares at the time of the exercise of the Option. Nothing in the Plan or in this Agreement shall be interpreted or construed to transfer any liability for any tax due by Participant to the Company, any Subsidiary or Affiliate, or to any other individual or entity, and the Company shall have no liability to Participant, or any other party, thereto.
9.No Right to Continued Employment and Other Service Conditions. As a condition to accepting the Option, Participant acknowledges and agrees as follows:
a.Nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/or its Affiliates to terminate Participant’s employment at any time or for any reason in accordance with the Company’s Bylaws, governing law and any applicable Service Agreement;
b.No terms of the Plan or this Agreement shall confer upon Participant any right to continue his or her employment for any specified period of time.
c.Neither this Agreement nor any benefits arising under the Plan or this Agreement shall constitute an employment contract or service contract with the Company, any Subsidiary and/or its Affiliates.
d.If Participant is not an employee, nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/or its Affiliates to terminate Participant’s service, (i) if a member of the Board, on the Board at any time or for any reason in accordance with the Company’s Bylaws and governing law, or (ii) if a non-employee consultant or advisor, in accordance with the terms of the contract with such consultant or advisor.
e.In no event shall any of the terms of the Plan or this Agreement itself confer upon Participant any right to continue his or her service for any specified period of time.
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f.Any notice period mandated under applicable law shall not be treated as service for the purpose of determining the vesting of the Option; and Participant’s right to vesting of shares in settlement of the Option after termination of service, if any, will be measured by the date of termination of Participant’s active service and will not be extended by any notice period mandated under applicable law. Subject to the foregoing and the provisions of this Agreement, the Company, in its sole discretion, shall determine whether Participant’s service has terminated and the effective date of such termination.
g.The grant of the Option is voluntary and occasional and does not create any contractual or other right to receive future grants of Options, or benefits in lieu of Options, even if Options have been granted repeatedly in the past. All decisions with respect to future Option grants, if any, will be at the sole discretion of the Company.
h.Participant is voluntarily participating in the grant of the Option.
i.The Option is an extraordinary item that does not constitute compensation of any kind for service of any kind rendered to the Company or its affiliates or subsidiaries, and which is outside the scope of Participant’s employment or service contract, if any. The Option is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculating any severance, resignation, termination, redundancy, end-of-service payments, bonuses, long-service awards, pension or retirement benefits or similar payments.
j.The future value of the underlying shares of Common Stock is unknown and cannot be predicted with certainty. The value of the shares may increase or decrease, even below the exercise price. If the underlying shares of Common Stock do not increase in value, the Option will have no value.
k.No claim or entitlement to compensation or damages arises from termination of the Option or diminution in value of the Option or shares and Participant irrevocably releases the Company and its affiliates and subsidiaries from any such claim that may arise. If, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen then, by signing this Agreement, Participant shall be deemed irrevocably to have waived Participant’s entitlement to pursue such a claim.
l.The Option and the benefits evidenced by the Agreement do not create any entitlement not otherwise specifically provided for in the Agreement or provided by the Company in its discretion, to have the Option or any such benefits transferred to, or assumed by, another company, nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the Common Stock.
m.Neither the Company nor any of its Affiliates shall be liable for any foreign exchange rate fluctuation between Participant’s local currency and the U.S. dollar that may affect the value of the Option or any amounts due to Participant pursuant to the exercise of the Option or the subsequent sale of any shares acquired upon exercise of the Option. To the extent the
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Company determines that a currency exchange or conversion is necessary in connection with the exercise of the Option or any other matter, such exchange shall be calculated and determined by the Company in its sole discretion, and the Company’s determination shall be final and binding.
10.Data Privacy. Participant understands that the Company may collect, use and transfer, in electronic or other form, Participant’s personal data as described in this Agreement for the exclusive purpose of implementing, administering and managing Participant’s Option. Participant understands that the Company holds certain personal information about Participant, including, but not limited to, Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares or directorships held in the Company, details of all Options or any other entitlement to shares awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor, for the purpose of implementing, administering and managing Participant’s Option (“Data”). Participant understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Option, that these recipients may be located in Participant’s country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than Participant’s country. Participant understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting Participant’s local human resources representative. Participant understands that recipients may receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing Participant’s Option, including any requisite transfer of such Data as may be required to a broker or other third party with whom Participant may elect to deposit any shares acquired pursuant to the Option. Participant understands that Data will be held only as long as is necessary to implement, administer and manage Participant’s Option. Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data or require any necessary amendments to Data, by contacting in writing Participant’s local human resources representative. For more information on the processing of Data for the purposes set out above, Participant understands that he or she may contact Participant’s local human resources representative. For Participants located within the European Union or the United Kingdom, Participant understands that Data will always be processed in accordance with the Insmed EU Employee Personal Data Processing Notice or the Insmed UK Employee Personal Data Processing Notice, respectively, a copy of which has been appended to the Agreement, if applicable, and is also available from Participant’s local human resources representative.
11.Not a Public Offering. The grant of the Option is not intended to be a public offering of securities in Participant’s country of employment or service (or country of residence, if different). The Company has not submitted any registration statement, prospectus, or other filings with the local securities authorities (unless otherwise required under local law), and the grant of the Option is not subject to the supervision of the local securities authorities.
12.No Advice Regarding Option. Investment in shares of the Company’s Common Stock involves a degree of risk. Before deciding to acquire shares by exercising the Option, Participant should carefully consider all risk factors relevant to the acquisition of shares of Common Stock and carefully review all of the materials related to the Option. The Company is not providing any tax, legal, or financial advice, nor is the Company making any recommendations regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the shares underlying the Option. Participant is hereby advised to consult with Participant’s own personal tax, legal, and financial advisors regarding Participant’s participation in the Plan before taking any action related to the Option.
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13.Language. If the Plan, the Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control to the maximum extent permitted by applicable law.
14.Imposition of Additional Requirements; Repatriation; Compliance with Law. The grant of the Option and the issuance and delivery of shares under the Option are subject to all applicable laws, rules, and regulations and to such approvals by any governmental agencies or securities exchange as may be required. Notwithstanding any provision of the Agreement, the Company has no liability to deliver any shares under the Option or make any payment unless such delivery or payment would comply with all laws and the applicable requirements of any governmental agency, securities exchange, or similar entity, and unless and until Participant has taken all actions required by the Company in connection with the Option. The Company reserves the right to impose other requirements on the Option and on the shares acquired upon the exercise of the Option to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. Participant agrees to repatriate all payments attributable to the shares and/or cash acquired under the Option in accordance with applicable foreign exchange rules and regulations in Participant’s country of employment or service (and country of residence, if different). In addition, Participant agrees to take any and all actions, and consents to any and all actions taken by the Company and any of its Affiliates, as may be required to allow the Company and any of its Affiliates to comply with local laws, rules, and/or regulations in Participant’s country of employment or service (and country of residence, if different). Finally, Participant agrees to take any and all actions as may be required to comply with Participant’s personal obligations under local laws, rules, and/or regulations in Participant’s country of employment or service (and country of residence, if different). Neither the Company nor any of its Affiliates shall be liable for any costs, fines, or penalties resulting from Participant’s failure to comply with such personal obligations.
15.Foreign Asset and Account Reporting. Participant’s country of employment or service (and country of residence, if different) may have certain exchange control and/or foreign asset/account reporting requirements which may affect Participant’s ability to acquire or hold shares under the Option or cash received in connection with the Option (including from any dividends received or sale proceeds resulting from the sale of shares) in a brokerage or bank account outside of Participant’s country. Participant may be required to report such accounts, assets, or transactions to the tax or other authorities in Participant’s country. Participant acknowledges that it is Participant’s responsibility to comply with any applicable regulations, and that Participant should speak to Participant’s personal advisor on this matter.
16.Annex of Country-Specific Terms. Notwithstanding any provisions in this Agreement, this Option may be subject to special terms and conditions set forth in the Annex to this Agreement for Participant’s country of employment or service (and country of residence, if different). Moreover, if Participant relocates to one of the countries included in the Annex, the special terms and conditions for such country will apply to Participant, to the extent the Company determines at its discretion that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. The Annex constitutes part of this Agreement.
17.Adjustments Upon Certain Unusual or Nonrecurring Events or Other Events. Upon certain unusual or nonrecurring events, or other events, the terms of this Option shall be adjusted by the Administrator pursuant to Section 14 of the Plan.
18.Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia.
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19.Conflicts. In the event of any conflict between the provisions of the Plan as in effect on the date hereof and the provisions of this Agreement, the provisions of the Plan shall govern. All references herein to the Plan shall mean the Plan as in effect on the date hereof.
20.Award and Participant Bound by Plan. Notwithstanding anything herein to the contrary, this Option and this Agreement shall be subject to and governed by all the terms and conditions of the Plan. Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof.
21.Binding Effect. Subject to the limitations stated above and in the Plan, this Agreement shall be binding upon and inure to the benefit of the legatees, distributees, and personal representatives of Participant and the successors of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by a duly authorized officer, and Participant has affixed his signature hereto.
INSMED INCORPORATED
By: /s/ Sara Bonstein
Chief Financial Officer
PARTICIPANT
By: /s/ /$ParticipantName$/
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ANNEX
TO
INSMED INCORPORATED
NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE AMENDED AND RESTATED 2019 INCENTIVE PLAN
ADDITIONAL NOTICES, TERMS AND CONDITIONS FOR NON-US PARTICIPANTS
Further Terms and Conditions of the Option. It is understood and agreed that the Option evidenced by the Non-Qualified Stock Option Agreement (“Agreement”) to which this is annexed is subject to the following additional terms and conditions:
Participant understands that this Annex includes special terms and conditions applicable to Participant if Participant resides and/or works in one of the countries below. These terms and conditions are in addition to those set forth in the Agreement and the Plan. Any capitalized term used in this Annex without definition shall have the meaning ascribed to it in the Agreement or the Plan, as applicable.
Participant further understands that this Annex also includes information relating to laws and regulatory requirements of which Participant should be aware with respect to his or her participation in the Plan. The information is based on the laws in effect in the respective countries as of May 2023. Such laws are often complex and change frequently. As a result, Participant understands that the Company strongly recommends that Participant not rely on the information herein as the only source of information relating to the consequences of participation in the Plan because the information may be out of date at the time that Participant’s Option are settled or Participant sells shares of Stock acquired under the Plan.
Finally, Participant understands that if: (a) Participant is a citizen or resident of a country other than the one in which Participant is currently working, (b) transfers employment after grant of the Option, or (c) is considered a resident of another country for local law purposes, the information contained herein may not apply to Participant, and the Company shall, in its discretion, determine to what extent the terms and conditions contained herein shall apply.
The Company may, from time to time, add or impose additional terms and conditions in respect of Participant’s Option in order to ensure compliance with any local laws and regulations.
AUSTRALIA
1.Securities Law Information. The offer of the Option is intended to comply with the provisions of the Corporations Act 2001. If Participant acquires shares under the Option and subsequently offers such shares for sale to a person or entity resident in Australia, the offer may be subject to disclosure requirements under Australian law. Participant should obtain legal advice on disclosure obligations prior to making any such offer.
2.Breach of Law. Notwithstanding anything to the contrary in the Agreement, Participant will not be entitled to, and shall not claim any benefit (including without limitation a legal right) under the Agreement if the provision of such benefit would give rise to a breach of Part 2D.2 of the Corporations Act 2001 (Cth), any other provision of that Act, or any other applicable statute, rule or regulation which limits or restricts the giving of such benefits.
3.Tax Information. The Option is an award to which Subdivision 83A-C of the Income Tax Assessment Act 1997 (Cth) applies (subject to the conditions in such Act).
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BELGIUM
1.Tax Information. Participant agrees and acknowledges that the Company will only accept a countersigned Agreement after the 60th day following Participant’s receipt of the Agreement. By formally accepting in writing the Agreement through signature and by returning it to the Company within 60 days from receipt of the Agreement, Participant would normally become subject to income tax on a lump-sum benefit in kind on the 60th day following receipt of the Agreement (being the “grant date” for Belgian tax purposes). In that case, no taxation should be triggered upon vesting or exercise. However, if written acceptance and return of the Agreement would take place after the 60th day following receipt of the Agreement, as required by the Company, taxation will normally be delayed to the date of exercise of this Option. In that case, grant or vesting should not trigger taxation.
CANADA
1.Data Privacy. This paragraph supplements the provisions of Section 10 (Data Privacy) of the Agreement. Participant hereby authorizes the Company and the Company’s representatives to discuss with and obtain all relevant information from all personnel, professional or not, involved in the administration and operation of the Agreement and the Option. Participant further authorizes the Company and any of its Affiliates and the Administrator to disclose and discuss the Agreement and the Option with their advisors. Participant further authorizes the Company and any of its Affiliates to record such information and to keep such information in Participant’s employee file.
2.English Language Consent - Quebec. The parties acknowledge that it is their express wish that the Agreement, as well as all documents, notices, and legal proceedings entered into, given, or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.
Les parties reconnaissent avoir expressement souhaité que la convention (le « Agreement »), ainsi que tous les documents, avis et procédures judiciaries, éxecutés, donnés ou intentés en vertu de, ou lié, directement ou indirectement à la présente convention, soient rédigés en langue anglaise.
DENMARK
No specific provisions.
FRANCE
1.Non-Qualification of Award. The Option is not intended to be tax qualified under French tax laws including, without limitation, under Articles L.225-177-1 and seq. of the French Commercial Code.
2.Language Consent. In accepting the grant of the Option and this Agreement which provides for the terms and conditions of the Option, Participant confirms that he or she has read and understood the documents relating to the Option (this Agreement), which were provided in the English language. Participant accepts the terms of these documents accordingly.
Consentement Relatif à la Langue Utilisée. En acceptant cette attribution gratuite d’actions et ce contrat qui contient les termes et conditions de cette attribution gratuite d’actions, l’employé confirme ainsi avoir lu et compris les documents relatifs à cette attribution (le Contrat d’Attribution) qui lui ont été communiqués en langue anglaise. L’employé en accepte les termes en connaissance de cause.
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GERMANY
No specific provisions.
IRELAND
No specific provisions.
ITALY
No specific provisions.
JAPAN
No specific provisions.
NETHERLANDS
1.Waiver of Termination Rights. Participant hereby waives any and all rights to compensation or damages as a result of Participant’s termination of employment or service with the Company and its Affiliates for any reason whatsoever, insofar as those rights result or may result from (i) the loss or diminution in value of such rights or entitlements under the Option, or (ii) Participant’s ceasing to have rights under the Option as a result of such termination.
PORTUGAL
No specific provisions.
SWITZERLAND
1.Securities Law Information. Neither this Agreement nor any other materials relating to the Option (i) constitutes a prospectus according to articles 35 et seq. of the Swiss Federal Act on Financial Services (“FinSA”), (ii) may be publicly distributed or otherwise made publicly available in Switzerland to any person other than Participant, or (iii) has been or will be filed with, approved or supervised by any Swiss reviewing body according to article 51 of FinSA or any Swiss regulatory authority, including the Swiss Financial Market Supervisory Authority (“FINMA”).
UNITED KINGDOM
1.National Insurance Contributions. The Company may require, as a condition of the exercise of the Option, that Participant shall, to the extent applicable:
a.agree to reimburse the Company in whole or in part for any employer’s secondary national insurance contributions arising on the exercise of the Option; or
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b.enter into an election with the Company to assume in whole or part the liability for any secondary Class 1 national insurance contributions, payable on the exercise of the Option, including an election under paragraph 3B of Schedule 1 to the Social Security Contributions and Benefits Act 1992; or
c.agree to pay the employer’s national insurance contributions, social security contributions, and other levies and taxes arising on the exercise of the Option to the extent permitted by law, in any other jurisdiction.
2.Section 431 Election. Participant agrees that, if requested to do so by the Company, Participant shall immediately upon the exercise of the Option enter into an irrevocable joint election with the Company pursuant to section 431 of the U.K. Income Tax (Earnings and Pensions) Act 2003 (“ITEPA”) in a form specified by the Company that, for the relevant tax purposes, the market value of the share acquired is to be calculated as if the share were not restricted securities (as defined in section 423 of ITEPA) and sections 425 to 430 of ITEPA shall not apply to such shares.
3.Outstanding Amounts. If Participant fails to make payment to the Company to satisfy Participant’s Tax Obligations in accordance with this Agreement immediately upon request, Participant shall be liable to make good any amount outstanding on demand.
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INSMED INCORPORATED
RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE AMENDED AND RESTATED 2019 INCENTIVE PLAN
FOR U.S. GRANTEES
Grantee Name: /$ParticipantName$/
Number of RSUs: /$AwardsGranted$/
Grant Date: /$GrantDate$/
Pursuant to the Insmed Incorporated Amended and Restated 2019 Incentive Plan (the “Plan”) as amended through the date hereof and this Restricted Stock Unit Award Agreement (this “Agreement”), Insmed Incorporated (the “Company”) hereby grants an award of /$AwardsGranted$/ restricted stock units (the “Restricted Stock Units” or the “RSU Award”) to the individual named above (the “Grantee”). Subject to the restrictions and conditions set forth herein and in the Plan, Grantee shall receive the number of Restricted Stock Units specified above.
If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of any employment, consulting or similar services agreement between Grantee and the Company (or any of its Affiliates, as applicable) as may be in effect (the “Service Agreement”), the Service Agreement shall control, and this Agreement shall be deemed to be modified accordingly so long as such modification is not expressly prohibited by the Plan.
The Company acknowledges the receipt from Grantee of consideration with respect to the par value of the shares of Common Stock subject to the RSU Award in the form of cash, past or future services rendered to the Company by Grantee or such other form of consideration as is acceptable to the Administrator and permitted under the Plan and applicable law.
1.Agreement with Terms. Execution of this Agreement by Grantee or receipt of any benefits under this Agreement by Grantee shall constitute Grantee’s acknowledgement of and agreement with all of the provisions of this Agreement and of the Plan that are applicable to this RSU Award, and the Company shall administer this Agreement accordingly.
2.Restrictions and Conditions on Award. Restricted Stock Units granted herein shall be subject to all the terms, conditions and restrictions set forth herein and in the Plan.
3.Timing and Form of Payout of Restricted Stock Units. As soon as practicable (but in no event later than 30 days) following the applicable Vesting Date (as defined below) or, if earlier, the date the RSU Award vests in accordance with Section 5 or Section 6 of this Agreement, the vested Restricted Stock Units shall be settled in shares of Common Stock (except as provided in Section 5 of this Agreement).
4.Vesting of Award. Except as set forth in Section 5 of this Agreement, the restrictions and conditions in Section 2 of this Agreement shall lapse with respect to 25% of the RSU Award on each anniversary of the Grant Date (each a “Vesting Date”) through the fourth anniversary of the Grant Date, so long as Grantee remains an employee or other service provider of the Company or its Affiliates on the applicable Vesting Date.
Notwithstanding anything to the contrary herein or in the Plan, the Administrator may at any time accelerate the vesting schedule specified in this Section 4.
5.Change in Control. In the event of a Change in Control, vesting of the RSU Award may be accelerated in accordance with the provisions of the Plan and/or Service Agreement. If, in connection with a Change in Control, the RSU Award is not assumed and no award is substituted for the RSU Award, then the vested Restricted Stock Units shall be settled in cash in an amount equal to the Fair Market Value of the shares of Common Stock underlying such vested Restricted Stock Units determined as of the date of the Change in Control.
6.Termination of Employment or Service. Except as otherwise provided in this Agreement or the Plan and/or Service Agreement, any unvested portion of the RSU Award shall be forfeited without payment of consideration upon the termination of Grantee’s employment or service with the Company or its Affiliates for any reason. A change in the status (whether as employee, member of the Board or other non-employee advisor or service provider) in which Grantee renders service to the Company and its Affiliates or a change in the entity for which Grantee renders such service shall not constitute a termination of Grantee’s employment or service for purposes of this Agreement, so long as there is no interruption or termination of Grantee’s services to the Company and its Affiliates; provided, however, that if the entity employing or engaging Grantee ceases to be an Affiliate of the Company, as determined by the Administrator, Grantee’s employment or service shall be considered to have terminated on the date such entity ceased to be an Affiliate.
7.Voting Rights and Dividends. Until such time as Restricted Stock Units are paid out in shares of Common Stock (if at all), Grantee shall not have any voting, dividend or other shareholder rights with respect to any shares of Common Stock underlying this RSU Award (“Underlying Shares”). No dividend equivalents shall accrue or be paid to Grantee with respect to the Underlying Shares.
8.Adjustments Upon Certain Unusual or Nonrecurring Events or Other Events. Upon certain unusual or nonrecurring events, or other events, the terms of these Restricted Stock Units shall be adjusted by the Administrator pursuant to Section 14 of the Plan.
9.Incorporation of Plan. Notwithstanding anything herein to the contrary, this RSU Award and this Agreement shall be subject to and governed by all the terms and conditions of the Plan. To the extent any provision hereof is inconsistent with a provision of the Plan, the provisions of the Plan will govern. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
10.Taxes.
(a) By accepting this Agreement, Grantee hereby elects to either (A) sell Underlying Shares in an amount and at such time as is determined in accordance with this Section 10, and to allow the Agent (as defined below) to remit the cash proceeds of such sales to the Company as more specifically set forth below (the “Sell to Cover”) to permit Grantee to satisfy any Federal, state, local or other taxes required by law to be withheld in respect of the vesting of the RSU Award (“Withholding Obligations”) that arise on future Vesting Dates or (B) make arrangements to the Administrator’s satisfaction under his or her existing 10b5-1 trading plan (“Existing 10b5-1 Plan”) to provide for the satisfaction of any Withholding Obligations that arise on future Vesting Dates. If Grantee does not make arrangements satisfying any Withholding Obligations to the Administrator’s satisfaction under their Existing 10b5-1 Plan by the time of the next Vesting Date, then any such Withholding Obligations for the newly vested Underlying Shares will be satisfied through a Sell to Cover as outlined in Section 10(b) of this Agreement.
(b) In the event of a Sell to Cover under this Agreement, Grantee acknowledges and agrees as follows:
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i.Grantee irrevocably appoints Merrill Lynch, Pierce, Fenner & Smith Inc., or such other registered broker-dealer that is a member of the Financial Industry Regulatory Authority, Inc. as the Administrator may select, as his or her agent (the “Agent”), and authorizes and directs the Agent to:
1.Sell on the open market at the then prevailing market price(s), on Grantee’s behalf, as soon as reasonably practicable on or after each Vesting Date, the number (rounded up to the next whole number) of Underlying Shares that is sufficient to generate proceeds to cover (A) the Withholding Obligations arising from the vesting of the applicable portion of the RSU Award and the related issuance of Underlying Shares to Grantee and (B) all applicable fees and commissions due to, or required to be collected by, the Agent with respect thereto;
2.Remit directly to the Company the proceeds necessary to satisfy the Withholding Obligations;
3.Retain the amount required to cover all applicable fees and commissions due to, or required to be collected by, the Agent, relating directly to the sale of the Underlying Shares referred to in clause (1) above; and
4.Remit to Grantee any remaining funds from the sale of Underlying Shares referred to in clause (1).
ii.Grantee acknowledges that its agreement to Sell to Cover and the corresponding authorization and instruction to the Agent set forth in this Section 10 are intended to constitute a “non-Rule 10b5-1 trading arrangement” within the meaning of Item 408(c) of Regulation S-K under the Act, and will be interpreted to comply with the requirements of such Item 408(c) (the Grantee’s agreement to Sell to Cover and the provisions of this Section 10, collectively, the “Trading Plan”). In furtherance thereof, Grantee acknowledges and agrees as follows:
1.This Trading Plan is being entered into in good faith and not as part of a plan or scheme to evade the requirements of Item 408(c).
2.Grantee is not, as of the date of adoption of this Trading Plan, aware of any material nonpublic information about the Common Stock or the Company.
iii.Grantee acknowledges that by accepting this RSU Award, he or she is adopting the Trading Plan to permit Grantee to satisfy Withholding Obligations. Grantee hereby authorizes the Company and the Agent to cooperate and communicate with one another to determine the number of Underlying Shares that must be sold to satisfy the Withholding Obligations.
iv.Grantee acknowledges that the Agent is under no obligation to arrange for the sale of Underlying Shares at any particular price under this Trading Plan and that the Agent may effect sales as provided in this Trading Plan in one or more sales and that the average price for executions resulting from bunched orders may be assigned to their account. Grantee further acknowledges that he or she will be responsible for all brokerage fees and other costs of sale
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associated with this Trading Plan, and agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale. In addition, Grantee acknowledges that it may not be possible to sell Underlying Shares as provided for in this Trading Plan due to (A) a legal or contractual restriction applicable to Grantee or the Agent, (B) a market disruption, (C) a sale effected pursuant to this Trading Plan that would not comply (or in the reasonable opinion of the Agent’s counsel is likely not to comply) with the Act, (D) the Company’s determination that sales may not be effected under this Trading Plan or (E) rules governing order execution priority on the national exchange where the Common Stock may be traded. If the Agent is not able to sell the Underlying Shares, then Grantee shall continue to be responsible for the timely payment to the Company of all Withholding Obligations.
v.Grantee acknowledges that regardless of any other term or condition of this Trading Plan, the Agent will not be liable to Grantee for (A) special, indirect, punitive, exemplary, or consequential damages, or incidental losses or damages of any kind, or (B) any failure to perform or for any delay in performance that results from a cause or circumstance that is beyond the Agent’s reasonable control.
vi.Grantee agrees to execute and deliver to the Agent any other agreements or documents as the Agent reasonably deems necessary or appropriate to carry out the purposes and intent of this Trading Plan. The Agent is a third-party beneficiary of this Section 10 and the terms of this Trading Plan.
vii.Grantee’s agreement to Sell to Cover and to enter into this Trading Plan is irrevocable. Upon acceptance of the RSU Award, Grantee shall have agreed to Sell to Cover and to enter into this Trading Plan, and Grantee acknowledges that they may not change this decision at any time in the future with respect to the RSU Award. This Trading Plan shall terminate on the earlier of:
1.the date on which the Withholding Obligations arising from the last vesting event in respect of the RSU Award and the related issuance of the Underlying Shares having been satisfied;
2.Grantee’s, Administrator’s or Agent’s reasonable determination that Grantee has not complied with the Trading Plan or applicable securities laws;
3.receipt by the Agent of a written notice from the Company, Administrator or Grantee regarding: (a) a public announcement having been made of a tender or exchange offer involving the Company’s securities; (b) a definitive agreement having been announced relating to a merger, reorganization, consolidation or similar transaction in which the Underlying Shares covered by this Trading Plan would be subject to a lock-up provision or would be exchanged or converted into cash, securities or other property; (c) a sale having been made of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity, or a transaction affecting the Company occurring in which the owners of the Company’s outstanding voting power prior to the transaction do not own at least a majority of the outstanding voting power of the successor entity immediately upon completion of the transaction; (d) a dissolution or
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liquidation of the Company having taken place or being in process, or the commencement or impending commencement of any proceedings in respect of or triggered by the Company’s bankruptcy or insolvency; or (e) this Trading Plan or its attendant transactions possibly causing the breach of a contract or agreement to which the Company is a party or by which the Company is bound;
4.receipt by the Agent of written notice of Grantee’s death or legal incapacity from the Administrator or the Company; or
5.receipt by the Agent of written notice of termination from Grantee that is signed by the Administrator or the Company.
(c) The Company shall have no obligation to deliver Underlying Shares until all applicable Withholding Obligations have been fully satisfied by Grantee. The Company makes no representation or undertaking regarding the tax treatment of the grant, vesting, or settlement of this RSU Award or the subsequent sale of any of the Underlying Shares. The Company does not commit and is under no obligation to structure this RSU Award to reduce or eliminate Grantee’s tax liability.
11.Section 409A of the Code. This RSU Award is intended to comply with the requirements of Section 409A of the Code or an exemption thereto, and this Agreement shall be interpreted in a manner consistent with this intent in order to avoid the imposition of any additional tax, interest or penalties under Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement, in no event shall any delivery of shares of Common Stock or other payment pursuant to this RSU Award occur after the short-term deferral period described in Treas. Reg. § 1.409A-1(b)(4). In no event shall the Company be liable for any additional tax, interest or penalties that may be imposed on Grantee pursuant to Section 409A of the Code or any damages for failing to comply with Section 409A of the Code or an exemption thereto.
12.No Right to Continued Employment. Nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/or its Affiliates to terminate Grantee’s employment at any time or for any reason in accordance with the Company’s Bylaws, governing law and any applicable Service Agreement, nor shall any terms of the Plan or this Agreement confer upon Grantee any right to continue his or her employment for any specified period of time. Neither this Agreement nor any benefits arising under the Plan or this Agreement shall constitute an employment contract with the Company, any Subsidiary and/or its Affiliates. If Grantee is not an employee, nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/or its Affiliates to terminate Grantee’s service, (i) if a member of the Board, on the Board at any time or for any reason in accordance with the Company’s Bylaws and governing law, or (ii) if a non-employee consultant or advisor, in accordance with the terms of the contract with such consultant or advisor. In no event shall any of the terms of the Plan or this Agreement itself confer upon Grantee any right to continue his or her service for any specified period of time.
13.Notices. Any notice or other communication given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the Company at its principal place of business or to Grantee at the address on the Company’s records or, in either case, at such other address as one party may subsequently furnish to the other party in writing. Additionally, if such notice or communication is by the Company to Grantee, the Company may provide such notice electronically (including via email). Any such notice shall be deemed to have been given (a) on
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the date of postmark, in the case of notice by mail, or (b) on the date of delivery, if delivered in person or electronically.
[SIGNATURE PAGE FOLLOWS]
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INSMED INCORPORATED
By: /s/ Sara Bonstein
Chief Financial Officer
The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned.
By: /s/ /$ParticipantName$/
[Signature Page to Restricted Stock Unit Award Agreement]
INSMED INCORPORATED
RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE AMENDED AND RESTATED 2019 INCENTIVE PLAN
FOR NON-U.S. GRANTEES
FOR NON-U.S. GRANTEES
Grantee Name: /$ParticipantName$/
Number of RSUs: /$AwardsGranted$/
Grant Date: /$GrantDate$/
Pursuant to the Insmed Incorporated Amended and Restated 2019 Incentive Plan (the “Plan”) as amended through the date hereof and this Restricted Stock Unit Award Agreement (this “Agreement”), Insmed Incorporated (the “Company”) hereby grants an award of /$AwardsGranted$/ restricted stock units (the “Restricted Stock Units” or the “RSU Award”) to the individual named above (the “Grantee”). Subject to the restrictions and conditions set forth herein and in the Plan, Grantee shall receive the number of Restricted Stock Units specified above.
If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of any employment, consulting or similar services agreement between Grantee and the Company (or any of its Affiliates, as applicable) as may be in effect (the “Service Agreement”), the Service Agreement shall control, and this Agreement shall be deemed to be modified accordingly so long as such modification is not expressly prohibited by the Plan.
The Company acknowledges the receipt from Grantee of consideration with respect to the par value of the shares of Common Stock subject to the RSU Award in the form of cash, past or future services rendered to the Company by Grantee or such other form of consideration as is acceptable to the Administrator and permitted under the Plan and applicable law.
1.Agreement with Terms. Execution of this Agreement by Grantee or receipt of any benefits under this Agreement by Grantee shall constitute Grantee’s acknowledgement of and agreement with all of the provisions of this Agreement and of the Plan that are applicable to this RSU Award, and the Company shall administer this Agreement accordingly.
2.Restrictions and Conditions on Award. Restricted Stock Units granted herein shall be subject to all the terms, conditions and restrictions set forth herein and in the Plan.
3.Timing and Form of Payout of Restricted Stock Units. As soon as practicable (but in no event later than 30 days) following the applicable Vesting Date (as defined below) or, if earlier, the date the RSU Award vests in accordance with Section 5 or Section 6 of this Agreement, the vested Restricted Stock Units shall be settled in shares of Common Stock (except as provided in Section 5 of this Agreement).
4.Vesting of Award. Except as set forth in Section 5 of this Agreement, the restrictions and conditions in Section 2 of this Agreement shall lapse with respect to 25% of the RSU Award on each anniversary of the Grant Date (each a “Vesting Date”) through the fourth anniversary of the Grant Date, so long as Grantee remains an employee or other service provider of the Company or its Affiliates on the applicable Vesting Date.
Notwithstanding anything to the contrary herein or in the Plan, the Administrator may at any time accelerate the vesting schedule specified in this Section 4.
5.Change in Control. In the event of a Change in Control, vesting of the RSU Award may be accelerated in accordance with the provisions of the Plan and/or Service Agreement. If, in connection with a Change in Control, the RSU Award is not assumed and no award is substituted for the RSU Award, then the vested Restricted Stock Units shall be settled in cash in an amount equal to the Fair Market Value of the shares of Common Stock underlying such vested Restricted Stock Units determined as of the date of the Change in Control.
6.Termination of Employment or Service. Except as otherwise provided in this Agreement or the Plan and/or Service Agreement, any unvested portion of the RSU Award shall be forfeited without payment of consideration upon the termination of Grantee’s employment or service with the Company or its Affiliates for any reason. A change in the status (whether as employee, member of the Board or other non-employee advisor or service provider) in which Grantee renders service to the Company and its Affiliates or a change in the entity for which Grantee renders such service shall not constitute a termination of Grantee’s employment or service for purposes of this Agreement, so long as there is no interruption or termination of Grantee’s services to the Company and its Affiliates; provided, however, that if the entity employing or engaging Grantee ceases to be an Affiliate of the Company, as determined by the Administrator, Grantee’s employment or service shall be considered to have terminated on the date such entity ceased to be an Affiliate.
7.Voting Rights and Dividends. Until such time as Restricted Stock Units are paid out in shares of Common Stock (if at all), Grantee shall not have any voting, dividend or other shareholder rights with respect to any shares of Common Stock underlying this RSU Award (“Underlying Shares”). No dividend equivalents shall accrue or be paid to Grantee with respect to the Underlying Shares.
8.Adjustments Upon Certain Unusual or Nonrecurring Events or Other Events. Upon certain unusual or nonrecurring events, or other events, the terms of these Restricted Stock Units shall be adjusted by the Administrator pursuant to Section 14 of the Plan.
9.Incorporation of Plan. Notwithstanding anything herein to the contrary, this RSU Award and this Agreement shall be subject to and governed by all the terms and conditions of the Plan. To the extent any provision hereof is inconsistent with a provision of the Plan, the provisions of the Plan will govern. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
10. Taxes.
a.By accepting this Agreement, Grantee hereby elects to either (A) sell Underlying Shares in an amount and at such time as is determined in accordance with this Section 10, and to allow the Agent (as defined below) to remit the cash proceeds of such sales to the Company as more specifically set forth below (the “Sell to Cover”) to permit Grantee to satisfy any Federal, state, local, foreign or other taxes required by law to be withheld (including without limitation social insurance contributions or national insurance contributions) in respect of the vesting of the RSU Award (“Withholding Obligations”) that arise on future Vesting Dates or (B) make arrangements to the Administrator’s satisfaction under his or her existing 10b5-1 trading plan (“Existing 10b5-1 Plan”) to provide for the satisfaction of any Withholding Obligations that arise on future Vesting Dates. If Grantee does not make arrangements satisfying any Withholding Obligations to the Administrator’s satisfaction under their Existing 10b5-1 Plan by the time of the next Vesting Date, then any such Withholding Obligations for the newly vested Underlying Shares will be satisfied through a Sell to Cover as outlined in Section 10(b) of this Agreement.
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b.In the event of a Sell to Cover under this Agreement, Grantee acknowledges and agrees as follows:
i.Grantee irrevocably appoints Merrill Lynch, Pierce, Fenner & Smith Inc., or such other registered broker-dealer that is a member of the Financial Industry Regulatory Authority, Inc. as the Administrator may select, as his or her agent (the “Agent”), and authorizes and directs the Agent to:
1.Sell on the open market at the then prevailing market price(s), on Grantee’s behalf, as soon as reasonably practicable on or after each Vesting Date, the number (rounded up to the next whole number) of Underlying Shares that is sufficient to generate proceeds to cover (A) the Withholding Obligations arising from the vesting of the applicable portion of the RSU Award and the related issuance of Underlying Shares to Grantee and (B) all applicable fees and commissions due to, or required to be collected by, the Agent with respect thereto;
2.Remit directly to the Company the proceeds necessary to satisfy the Withholding Obligations;
3.Retain the amount required to cover all applicable fees and commissions due to, or required to be collected by, the Agent, relating directly to the sale of the Underlying Shares referred to in clause (1) above; and
4.Remit to Grantee any remaining funds from the sale of Underlying Shares referred to in clause (1).
ii.Grantee acknowledges that its agreement to Sell to Cover and the corresponding authorization and instruction to the Agent set forth in this Section 10 are intended to constitute a “non-Rule 10b5-1 trading arrangement” within the meaning of Item 408(c) of Regulation S-K under the Act, and will be interpreted to comply with the requirements of such Item 408(c) (the Grantee’s agreement to Sell to Cover and the provisions of this Section 10, collectively, the “Trading Plan”). In furtherance thereof, Grantee acknowledges and agrees as follows:
1.This Trading Plan is being entered into in good faith and not as part of a plan or scheme to evade the requirements of Item 408(c).
2.Grantee is not, as of the date of adoption of this Trading Plan, aware of any material nonpublic information about the Common Stock or the Company.
iii.Grantee acknowledges that by accepting this RSU Award, he or she is adopting the Trading Plan to permit Grantee to satisfy Withholding Obligations. Grantee hereby authorizes the Company and the Agent to cooperate and communicate with one another to determine the number of Underlying Shares that must be sold to satisfy the Withholding Obligations.
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iv.Grantee acknowledges that the Agent is under no obligation to arrange for the sale of Underlying Shares at any particular price under this Trading Plan and that the Agent may effect sales as provided in this Trading Plan in one or more sales and that the average price for executions resulting from bunched orders may be assigned to their account. Grantee further acknowledges that he or she will be responsible for all brokerage fees and other costs of sale associated with this Trading Plan, and agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale. In addition, Grantee acknowledges that it may not be possible to sell Underlying Shares as provided for in this Trading Plan due to (A) a legal or contractual restriction applicable to Grantee or the Agent, (B) a market disruption, (C) a sale effected pursuant to this Trading Plan that would not comply (or in the reasonable opinion of the Agent’s counsel is likely not to comply) with the Act, (D) the Company’s determination that sales may not be effected under this Trading Plan or (E) rules governing order execution priority on the national exchange where the Common Stock may be traded. If the Agent is not able to sell the Underlying Shares, then Grantee shall continue to be responsible for the timely payment to the Company of all Withholding Obligations.
v.Grantee acknowledges that regardless of any other term or condition of this Trading Plan, the Agent will not be liable to Grantee for (A) special, indirect, punitive, exemplary, or consequential damages, or incidental losses or damages of any kind, or (B) any failure to perform or for any delay in performance that results from a cause or circumstance that is beyond the Agent’s reasonable control.
vi.Grantee agrees to execute and deliver to the Agent any other agreements or documents as the Agent reasonably deems necessary or appropriate to carry out the purposes and intent of this Trading Plan. The Agent is a third-party beneficiary of this Section 10 and the terms of this Trading Plan.
vii.Grantee’s agreement to Sell to Cover and to enter into this Trading Plan is irrevocable. Upon acceptance of the RSU Award, Grantee shall have agreed to Sell to Cover and to enter into this Trading Plan, and Grantee acknowledges that they may not change this decision at any time in the future with respect to the RSU Award. This Trading Plan shall terminate on the earlier of:
1.the date on which the Withholding Obligations arising from the last vesting event in respect of the RSU Award and the related issuance of the Underlying Shares having been satisfied;
2.Grantee’s, Administrator’s or Agent’s reasonable determination that Grantee has not complied with the Trading Plan or applicable securities laws;
3.receipt by the Agent of a written notice from the Company, Administrator or Grantee regarding: (a) a public announcement having been made of a tender or exchange offer involving the Company’s securities; (b) a definitive agreement having been announced relating to a merger, reorganization, consolidation or
4
similar transaction in which the Underlying Shares covered by this Trading Plan would be subject to a lock-up provision or would be exchanged or converted into cash, securities or other property; (c) a sale having been made of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity, or a transaction affecting the Company occurring in which the owners of the Company’s outstanding voting power prior to the transaction do not own at least a majority of the outstanding voting power of the successor entity immediately upon completion of the transaction; (d) a dissolution or liquidation of the Company having taken place or being in process, or the commencement or impending commencement of any proceedings in respect of or triggered by the Company’s bankruptcy or insolvency; or (e) this Trading Plan or its attendant transactions possibly causing the breach of a contract or agreement to which the Company is a party or by which the Company is bound;
4.receipt by the Agent of written notice of Grantee’s death or legal incapacity from the Administrator or the Company; or
5.receipt by the Agent of written notice of termination from Grantee that is signed by the Administrator or the Company.
c.The Company shall have no obligation to deliver Underlying Shares until all applicable Withholding Obligations have been fully satisfied by Grantee. The Company makes no representation or undertaking regarding the tax treatment of the grant, vesting, or settlement of this RSU Award or the subsequent sale of any of the Underlying Shares. The Company does not commit and is under no obligation to structure this RSU Award to reduce or eliminate Grantee’s tax liability. Grantee authorizes the Company to disclose all information on Grantee and his or her participation in this Agreement that is or may be relevant for the calculation of applicable tax obligations to the competent local tax authorities and the Company’s Affiliates.
11.Section 409A of the Code. This RSU Award is intended to comply with the requirements of Section 409A of the Code or an exemption thereto, and this Agreement shall be interpreted in a manner consistent with this intent in order to avoid the imposition of any additional tax, interest or penalties under Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement, in no event shall any delivery of shares of Common Stock or other payment pursuant to this RSU Award occur after the short-term deferral period described in Treas. Reg. § 1.409A-1(b)(4). In no event shall the Company be liable for any additional tax, interest or penalties that may be imposed on Grantee pursuant to Section 409A of the Code or any damages for failing to comply with Section 409A of the Code or an exemption thereto.
12.Notices. Any notice or other communication given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the Company at its principal place of business or to Grantee at the address on the Company’s records or, in either case, at such other address as one party may subsequently furnish to the other party in writing. Additionally, if such notice or communication is by the Company to Grantee, the Company may provide such notice electronically (including via email). Any such notice shall be deemed to have been given (a) on the date of postmark, in the case of notice by mail, or (b) on the date of delivery, if delivered in person or electronically.
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13.No Right to Continued Employment and Other Service Conditions. As a condition to accepting this RSU Award, Grantee acknowledges and agrees as follows:
a.Nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/or its Affiliates to terminate Grantee’s employment at any time or for any reason in accordance with the Company’s Bylaws, governing law and any applicable employment agreement;
b.No terms of the Plan or this Agreement shall confer upon Grantee any right to continue his or her employment for any specified period of time.
c.Neither this Agreement nor any benefits arising under the Plan or this Agreement shall constitute an employment contract with the Company, any Subsidiary and/or its Affiliates.
d.If Grantee is not an employee, nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/or its Affiliates to terminate Grantee’s service, (i) if a member of the Board, on the Board at any time or for any reason in accordance with the Company’s Bylaws and governing law, or (ii) if a non-employee consultant or advisor, in accordance with the terms of the contract with such consultant or advisor.
e.In no event shall any of the terms of the Plan or this Agreement itself confer upon Grantee any right to continue his or her service for any specified period of time.
f.Any notice period mandated under applicable law shall not be treated as service for the purpose of determining the vesting of this RSU Award; and Grantee’s right to vesting of this RSU Award after termination of service, if any, will be measured by the date of termination of Grantee’s active service and will not be extended by any notice period mandated under applicable law. Subject to the foregoing and the provisions of this Agreement, the Company, in its sole discretion, shall determine whether Grantee’s service has terminated and the effective date of such termination.
g.The grant of this RSU Award is voluntary and occasional and does not create any contractual or other right to receive future grants of RSU Awards, or benefits in lieu of RSU Awards, even if RSU Awards have been granted repeatedly in the past. All decisions with respect to future RSU Award grants, if any, will be at the sole discretion of the Company.
h.Grantee is voluntarily participating in the grant of this RSU Award.
i.This RSU Award is an extraordinary item that does not constitute compensation of any kind for service of any kind rendered to the Company or its Affiliates or Subsidiaries, and which is outside the scope of Grantee’s employment contract, if any. This RSU Award is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculating any severance, resignation, termination, redundancy, end-of-service payments, bonuses, long-service awards, pension or retirement benefits or similar payments.
j.The future value of the underlying shares of Common Stock is unknown and cannot be predicted with certainty. The value of the shares may increase or decrease.
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k.No claim or entitlement to compensation or damages arises from termination of this RSU Award or diminution in value of this RSU Award or shares of Common Stock subject thereto, and Grantee irrevocably releases the Company and its Affiliates and Subsidiaries from any such claim that may arise. If, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen then, by signing this Agreement, Grantee shall be deemed irrevocably to have waived Grantee’s entitlement to pursue such a claim.
i.The RSU Award and the benefits evidenced by the Agreement do not create any entitlement not otherwise specifically provided for in the Agreement or provided by the Company in its discretion, to have the RSU Award or any such benefits transferred to, or assumed by, another company, nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the Common Stock.
l.Neither the Company nor any of its Affiliates shall be liable for any foreign exchange rate fluctuation between Grantee’s local currency and the U.S. dollar that may affect the value of the RSU Award or any amounts due to Grantee in connection with the RSU Award or the subsequent sale of any shares acquired upon settlement of the RSU Award. To the extent the Company determines that a currency exchange or conversion is necessary in connection with the settlement of the RSU Award or any other matter, such exchange shall be calculated and determined by the Company in its sole discretion, and the Company’s determination shall be final and binding.
14.Data Privacy. Grantee understands that the Company may collect, use and transfer, in electronic or other form, Grantee’s personal data as described in this Agreement for the exclusive purpose of implementing, administering and managing Grantee’s RSU Award. Grantee understands that the Company holds certain personal information about Grantee, including, but not limited to, Grantee’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares or directorships held in the Company, details of all RSU Awards or any other entitlement to shares awarded, canceled, exercised, vested, unvested or outstanding in Grantee’s favor, for the purpose of implementing, administering and managing Grantee’s RSU Award (“Data”). Grantee understands that Data may be transferred to any third parties assisting in the implementation, administration and management of this RSU Award, that these recipients may be located in Grantee’s country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than Grantee’s country. Grantee understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting Grantee’s local human resources representative. Grantee understands that recipients may receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing Grantee’s RSU Award, including any requisite transfer of such Data as may be required to a broker or other third party with whom Grantee may elect to deposit any shares acquired pursuant to this RSU Award. Grantee understands that Data will be held only as long as is necessary to implement, administer and manage Grantee’s RSU Award. Grantee understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data or require any necessary amendments to Data, by contacting in writing Grantee’s local human resources representative. For more information on the processing of Data for the purposes set out above, Grantee understands that he or she may contact Grantee’s local human resources representative. For Grantees located within the European Union or the United Kingdom, Grantee understands that Data will always be processed in accordance with the Insmed EU Employee Personal Data Processing Notice or the Insmed UK Employee Personal Data Processing Notice, respectively, a copy of which has been appended to the Agreement, if applicable, and is also available from Grantee’s local human resources representative.
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15.Not a Public Offering. The grant of the RSU Award is not intended to be a public offering of securities in Grantee’s country of employment or service (or country of residence, if different). The Company has not submitted any registration statement, prospectus, or other filings with the local securities authorities (unless otherwise required under local law), and the grant of the RSU Award is not subject to the supervision of the local securities authorities.
16.No Advice Regarding Award. Investment in shares of the Company’s Common Stock involves a degree of risk. Before deciding to accept the Award, Grantee should carefully consider all risk factors relevant to the acquisition of shares of Common Stock and carefully review all of the materials related to the RSU Award. The Company is not providing any tax, legal, or financial advice, nor is the Company making any recommendations regarding Grantee’s participation in the Plan, or Grantee’s acquisition or sale of the shares underlying the RSU Award. Grantee is hereby advised to consult with Grantee’s own personal tax, legal, and financial advisors regarding Grantee’s participation in the Plan before taking any action related to the RSU Award.
17.Language. If the Plan, this Agreement or any other document related to the Plan is translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control to the maximum extent permitted by applicable law.
18.Imposition of Additional Requirements; Repatriation; Compliance with Law. The grant of the RSU Award and the issuance and delivery of shares under the RSU Award are subject to all applicable laws, rules, and regulations and to such approvals by any governmental agencies or securities exchange as may be required. Notwithstanding any provision of the Agreement, the Company has no liability to deliver any shares under the RSU Award or make any payment unless such delivery or payment would comply with all laws and the applicable requirements of any governmental agency, securities exchange, or similar entity, and unless and until Grantee has taken all actions required by the Company in connection with the RSU Award. The Company reserves the right to impose other requirements on the RSU Award and on any shares acquired upon the settlement of the RSU Award to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require Grantee to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. Grantee agrees to repatriate all payments attributable to the shares and/or cash acquired under the RSU Award in accordance with applicable foreign exchange rules and regulations in Grantee’s country of employment or service (and country of residence, if different). In addition, Grantee agrees to take any and all actions, and consents to any and all actions taken by the Company and any of its Affiliates, as may be required to allow the Company and any of its Affiliates to comply with local laws, rules, and/or regulations in Grantee’s country of employment or service (and country of residence, if different). Finally, Grantee agrees to take any and all actions as may be required to comply with Grantee’s personal obligations under local laws, rules, and/or regulations in Grantee’s country of employment or service (and country of residence, if different). Neither the Company nor any of its Affiliates shall be liable for any costs, fines, or penalties resulting from Grantee’s failure to comply with such personal obligations.
19.Foreign Asset and Account Reporting. Grantee’s country of employment or service (and country of residence, if different) may have certain exchange control and/or foreign asset/account reporting requirements which may affect Grantee’s ability to acquire or hold shares under the RSU Award or cash received in connection with the RSU Award (including from any dividends received or sale proceeds resulting from the sale of shares) in a brokerage or bank account outside of Grantee’s country. Grantee may be required to report such accounts, assets, or transactions to the tax or other authorities in Grantee’s country. Grantee acknowledges that it is
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Grantee’s responsibility to comply with any applicable regulations, and that Grantee should speak to Grantee’s personal advisor on this matter.
20.Annex of Country-Specific Terms. Notwithstanding any provisions in this Agreement, this RSU Award may be subject to special terms and conditions set forth in the Annex to this Agreement for Grantee’s country of employment or service (and country of residence, if different). Moreover, if Grantee relocates to one of the countries included in the Annex, the special terms and conditions for such country will apply to Grantee, to the extent the Company determines at its discretion that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. The Annex constitutes part of this Agreement.
INSMED INCORPORATED
By: /s/ Sara Bonstein
Chief Financial Officer
The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned.
By: /s/ /$ParticipantName$/
9
ANNEX
TO
INSMED INCORPORATED
RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE AMENDED AND RESTATED 2019 INCENTIVE PLAN
ADDITIONAL NOTICES, TERMS AND CONDITIONS FOR NON-U.S. GRANTEES
Further Terms and Conditions of the RSU Award. It is understood and agreed that the RSU Award evidenced by the Restricted Stock Unit Award Agreement (“Agreement”) to which this is annexed is subject to the following additional terms and conditions:
Grantee understands that this Annex includes special terms and conditions applicable to Grantee if Grantee resides and/or works in one of the countries below. These terms and conditions are in addition to those set forth in the Agreement and the Plan. Any capitalized term used in this Annex without definition shall have the meaning ascribed to it in the Agreement or the Plan, as applicable.
Grantee further understands that this Annex also includes information relating to laws and regulatory requirements of which Grantee should be aware with respect to his or her participation in the Plan. The information is based on the laws in effect in the respective countries as of May 2023. Such laws are often complex and change frequently. As a result, Grantee understands that the Company strongly recommends that Grantee not rely on the information herein as the only source of information relating to the consequences of participation in the Plan because the information may be out of date at the time that Grantee’s RSU Award is settled or Grantee sells shares of Common Stock acquired under the Plan.
Finally, Grantee understands that if: (a) Grantee is a citizen or resident of a country other than the one in which Grantee is currently working, (b) transfers employment after grant of the RSU Award, or (c) is considered a resident of another country for local law purposes, the information contained herein may not apply to Grantee, and the Company shall, in its discretion, determine to what extent the terms and conditions contained herein shall apply.
The Company may, from time to time, add or impose additional terms and conditions in respect of Grantee’s RSU Award in order to ensure compliance with any local laws and regulations.
AUSTRALIA
1.Securities Law Information. The offer of the RSU Award is intended to comply with the provisions of the Corporations Act 2001. If Grantee acquires shares under the RSU Award and subsequently offers such shares for sale to a person or entity resident in Australia, the offer may be subject to disclosure requirements under Australian law. Grantee should obtain legal advice on disclosure obligations prior to making any such offer.
2.Breach of Law. Notwithstanding anything to the contrary in the Agreement, Grantee will not be entitled to, and shall not claim any benefit (including without limitation a legal right) under the Agreement if the provision of such benefit would give rise to a breach of Part 2D.2 of the Corporations Act 2001 (Cth), any other provision of that Act, or any other applicable statute, rule or regulation which limits or restricts the giving of such benefits.
3.Tax Information. The RSU Award is an award to which Subdivision 83A-C of the Income Tax Assessment Act 1997 (Cth) applies (subject to the conditions in such Act).
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BELGIUM
No specific provisions.
CANADA
1.Data Privacy. This paragraph supplements the provisions of Section 14 (Data Privacy) of the Agreement. Grantee hereby authorizes the Company and the Company’s representatives to discuss with and obtain all relevant information from all personnel, professional or not, involved in the administration and operation of the Agreement and the RSU Award. Grantee further authorizes the Company and any of its Affiliates and the Administrator to disclose and discuss the Agreement and the RSU Award with their advisors. Grantee further authorizes the Company and any of its Affiliates to record such information and to keep such information in Grantee’s employee file.
2.English Language Consent - Quebec. The parties acknowledge that it is their express wish that the Agreement, as well as all documents, notices, and legal proceedings entered into, given, or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.
Les parties reconnaissent avoir expressement souhaité que la convention (le « Agreement »), ainsi que tous les documents, avis et procédures judiciaries, éxecutés, donnés ou intentés en vertu de, ou lié, directement ou indirectement à la présente convention, soient rédigés en langue anglaise.
DENMARK
No specific provisions.
FRANCE
1.Non-Qualification of Award. The RSU Award is not intended to be tax qualified under French tax laws including, without limitation, under Articles L. 225-197-1 and seq. of the French Commercial Code.
2.Language Consent. In accepting the grant of the RSU Award and this Agreement which provides for the terms and conditions of the RSU Award, Grantee confirms that he or she has read and understood the documents relating to the RSU Award (this Agreement), which were provided in the English language. Grantee accepts the terms of these documents accordingly.
Consentement Relatif à la Langue Utilisée. En acceptant cette attribution gratuite d’actions et ce contrat qui contient les termes et conditions de cette attribution gratuite d’actions, l’employé confirme ainsi avoir lu et compris les documents relatifs à cette attribution (le Contrat d’Attribution) qui lui ont été communiqués en langue anglaise. L’employé en accepte les termes en connaissance de cause.
GERMANY
No specific provisions.
IRELAND
No specific provisions.
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ITALY
No specific provisions.
JAPAN
No specific provisions.
NETHERLANDS
1.Waiver of Termination Rights. Grantee hereby waives any and all rights to compensation or damages as a result of Grantee’s termination of employment or service with the Company and its Affiliates for any reason whatsoever, insofar as those rights result or may result from (i) the loss or diminution in value of such rights or entitlements under the RSU Award, or (ii) Grantee’s ceasing to have rights under the RSU Award as a result of such termination.
PORTUGAL
No specific provisions.
SWITZERLAND
1.Securities Law Information. Neither this Agreement nor any other materials relating to the RSU Award (i) constitutes a prospectus according to articles 35 et seq. of the Swiss Federal Act on Financial Services (“FinSA”), (ii) may be publicly distributed or otherwise made publicly available in Switzerland to any person other than Grantee, or (iii) has been or will be filed with, approved or supervised by any Swiss reviewing body according to article 51 of FinSA or any Swiss regulatory authority, including the Swiss Financial Market Supervisory Authority (“FINMA”).
UNITED KINGDOM
1.National Insurance Contributions. The Company may require, as a condition of the settlement of the RSU Award, that Grantee shall, to the extent applicable:
a.agree to reimburse the Company in whole or in part for any employer’s secondary national insurance contributions arising in connection with the RSU Award; or
b.enter into an election with the Company to assume in whole or part the liability for any secondary Class 1 national insurance contributions, payable in connection with the RSU Award, including an election under paragraph 3B of Schedule 1 to the Social Security Contributions and Benefits Act 1992; or
c.agree to pay the employer’s national insurance contributions, social security contributions, and other levies and taxes arising in connection with the RSU Award to the extent permitted by law, in any other jurisdiction.
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2.Section 431 Election. Grantee agrees that, if requested to do so by the Company, Grantee shall immediately upon the settlement of the RSU Award enter into an irrevocable joint election with the Company pursuant to section 431 of the U.K. Income Tax (Earnings and Pensions) Act 2003 (“ITEPA”) in a form specified by the Company that, for the relevant tax purposes, the market value of the share acquired is to be calculated as if the share were not restricted securities (as defined in section 423 of ITEPA) and sections 425 to 430 of ITEPA shall not apply to such shares.
3.Outstanding Amounts. If Grantee fails to make payment to the Company to satisfy Grantee’s Tax Obligations in accordance with this Agreement immediately upon request, Grantee shall be liable to make good any amount outstanding on demand.
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INSMED INCORPORATED
RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE AMENDED AND RESTATED 2019 INCENTIVE PLAN
FOR MEMBERS OF THE BOARD OF DIRECTORS
FOR MEMBERS OF THE BOARD OF DIRECTORS
Grantee Name: [NAME]
Number of RSUs: [AMOUNT]
Grant Date: [DATE]
Pursuant to the Insmed Incorporated Amended and Restated 2019 Incentive Plan (the “Plan”) as amended through the date hereof and this Restricted Stock Unit Award Agreement (this “Agreement”), Insmed Incorporated (the “Company”) hereby grants an award of [AMOUNT] restricted stock units (the “Restricted Stock Units” or the “RSU Award”) to the individual named above (the “Grantee”). Subject to the restrictions and conditions set forth herein and in the Plan, Grantee shall receive the number of Restricted Stock Units specified above.
The Company acknowledges the receipt from Grantee of consideration with respect to the par value of the shares of Common Stock subject to the RSU Award in the form of cash, past or future services rendered to the Company by Grantee or such other form of consideration as is acceptable to the Administrator and permitted under the Plan and applicable law.
1.Agreement with Terms. Execution of this Agreement by Grantee or receipt of any benefits under this Agreement by Grantee shall constitute Grantee’s acknowledgement of and agreement with all of the provisions of this Agreement and of the Plan that are applicable to this RSU Award, and the Company shall administer this Agreement accordingly.
2.Restrictions and Conditions on Award. Restricted Stock Units granted herein shall be subject to all the terms, conditions and restrictions set forth herein and in the Plan.
3.Timing and Form of Payout of Restricted Stock Units. As soon as practicable (but in no event later than 30 days) following the Vesting Date (as defined below) or, if earlier, the date the RSU Award vests in accordance with Section 5 or Section 6 of this Agreement, the vested Restricted Stock Units shall be settled in shares of Common Stock (except as may be permitted by Section 14 of the Plan).
4.Vesting of Award. Except as set forth in Sections 5 or 6 of this Agreement, the restrictions and conditions in Section 2 of this Agreement shall lapse with respect to 100% of the RSU Award on the first anniversary of the Grant Date (the “Vesting Date”) so long as (a) Grantee remains a member of the Board on such Vesting Date and (b) Grantee attends at least seventy-five percent (75%) of the Board meetings that take place during the period of time commencing from the Grant Date and ending on the first anniversary of the Grant Date.
Except as otherwise provided in Sections 5 and 6 of this Agreement, Grantee shall forfeit any unvested portion of the RSU Award if either the following shall occur: (i) in the event Grantee’s service as a member of the Board is terminated for any reason prior to the Vesting Date; or (ii) in the event that Grantee fails to attend at least seventy-five percent (75%) of the Board meetings that take place during the period of time commencing from the Grant Date and ending on the first anniversary of the Grant Date.
Notwithstanding anything to the contrary herein or in the Plan, the Administrator may at any time accelerate the vesting schedule specified in this Section 4.
5.Change in Control. In the event of a Change in Control of the Company, the unvested portion of the RSU Award, to the extent not previously forfeited or cancelled, shall immediately vest as of the date of such Change in Control.
6.Termination of Service. Except as otherwise provided herein, any unvested portion of the RSU Award shall be forfeited without payment of consideration upon the termination of Grantee’s service with the Company or its Affiliates for any reason, except as otherwise provided in this Section 6. Notwithstanding the foregoing, upon Grantee’s death (while an active member of the Board) or upon the termination of Grantee’s service due to Disability (as defined below), the RSU Award to the extent not previously forfeited or cancelled, shall immediately vest as of the date of Grantee’s death or Disability. For purposes of this Agreement, Grantee will be considered “Disabled” if, as a result of Grantee’s incapacity due to physical or mental illness, Grantee shall have been absent from his duties to the Company or its Affiliates on a full-time basis for 180 calendar days in the aggregate in any 12-month period.
7.Voting Rights and Dividends. If and until such time as Restricted Stock Units are paid out in shares of Common Stock (if at all), Grantee shall not have any voting rights with respect to any shares of Common Stock underlying this RSU Award (“Underlying Shares”). However, bookkeeping equivalents of all dividends and other distributions paid with respect to the Common Stock shall accrue with respect to the Underlying Shares and shall be converted to additional Restricted Stock Units (rounded to the nearest whole share of Common Stock) based on the closing price of the Common Stock on the dividend distribution date. Such additional Restricted Stock Units shall be subject to the same restrictions on transferability as are the Restricted Stock Units with respect to which they were paid.
8.Adjustments Upon Certain Unusual or Nonrecurring Events or Other Events. Upon certain unusual or nonrecurring events, or other events, the terms of these Restricted Stock Units shall be adjusted by the Administrator pursuant to Section 14 of the Plan.
9.Incorporation of Plan. Notwithstanding anything herein to the contrary, this RSU Award and this Agreement shall be subject to and governed by all the terms and conditions of the Plan. To the extent any provision hereof is inconsistent with a provision of the Plan, the provisions of the Plan will govern. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
10.Taxes. Grantee is ultimately liable and responsible for all taxes owed by Grantee in connection with this RSU Award. The Company makes no representation or undertaking regarding the tax treatment of the grant, vesting, or settlement of this RSU Award or the subsequent sale of any of the Underlying Shares. The Company does not commit and is under no obligation to structure this RSU Award to reduce or eliminate Grantee’s tax liability.
11.Section 409A of the Code. This RSU Award is intended to comply with the requirements of Section 409A of the Code or an exemption thereto, and this Agreement shall be interpreted in a manner consistent with this intent in order to avoid the imposition of any additional tax, interest or penalties under Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement, in no event shall any delivery of shares of Common Stock or other payment pursuant to this RSU Award occur after the short-term deferral period described in Treas. Reg. § 1.409A-1(b)(4). In no event shall the Company be liable for any additional tax, interest or penalties that may be imposed on Grantee pursuant to Section 409A of the Code or any damages for failing to comply with Section 409A of the Code or an exemption thereto.
12.No Right to Re-Election or Continued Service. Nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/
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or its Affiliates to terminate Grantee’s service on the Board at any time or for any reason in accordance with the Company’s Bylaws and governing law, nor shall any terms of the Plan or this Agreement confer upon Grantee any right to continue his or her service for any specified period of time. Neither this Agreement nor any benefits arising under the Plan or this Agreement shall constitute an employment contract with the Company, any Subsidiary and/or its Affiliates.
13.Notices. Any notice or other communication given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the Company at its principal place of business or to Grantee at the address on the Company’s records or, in either case, at such other address as one party may subsequently furnish to the other party in writing. Additionally, if such notice or communication is by the Company to Grantee, the Company may provide such notice electronically (including via email). Any such notice shall be deemed to have been given (a) on the date of postmark, in the case of notice by mail, or (b) on the date of delivery, if delivered in person or electronically.
INSMED INCORPORATED
By:
Name:
Title:
The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned.
Dated: By: ___________________________________
[NAME]
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INSMED INCORPORATED
PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE 2019 INCENTIVE PLAN FOR U.S. GRANTEES
Grantee Name: /$ParticipantName$/
Target Number of PSUs: /$GrantTxt2$/
Grant Date: /$GrantDate$/
Pursuant to the Insmed Incorporated 2019 Incentive Plan (the “Plan”) as amended through the date hereof and this Performance-Based Restricted Stock Unit Award Agreement (together with Exhibit A attached hereto, this “Agreement”), Insmed Incorporated (the “Company”) hereby grants an award of performance-based restricted stock units (the “PSUs” or the “PSU Award”) to the individual named above (the “Grantee”). The target number of PSUs subject to this PSU Award is /$GrantTxt2$/ (the “Target PSUs”). Each PSU corresponds to the right to receive one share of Common Stock, subject to the restrictions and conditions set forth herein and in the Plan. The actual number of PSUs that will vest and be settled into shares of Common Stock pursuant to this PSU Award shall depend on the achievement of the performance and service conditions described in Exhibit A attached hereto (the “Vesting Schedule”). All terms used herein that are defined in the Plan have the same meaning given them in the Plan.
The Company acknowledges the receipt from the Grantee of consideration with respect to the par value of the shares of Common Stock subject to the PSU Award in the form of cash, past or future services rendered to the Company by the Grantee or such other form of consideration as is acceptable to the Administrator and permitted under the Plan and applicable law.
1.Agreement with Terms. Execution of this Agreement by the Grantee or receipt of any benefits under this Agreement by the Grantee shall constitute the Grantee’s acknowledgement of and agreement with all of the provisions of this Agreement and of the Plan that are applicable to this PSU Award, and the Company shall administer this Agreement accordingly.
2.Restrictions and Conditions on Award. PSUs granted herein shall be subject to all the terms, conditions and restrictions set forth herein and in the Plan.
3.Timing and Form of Payout of Restricted Stock Units. As soon as practicable (but in no event later than 60 days) following the applicable Vesting Date (as defined below), the Vested PSUs (as defined below) shall be settled in shares of Common Stock (except as provided in Section 5 of this Agreement).
4.Vesting of Award. Except as set forth in Section 5 or Section 6 of this Agreement, the PSUs will vest in accordance with the Vesting Schedule. PSUs that have vested in accordance with the Vesting Schedule or in accordance with Section 5 or Section 6 of this Agreement are referred to herein as “Vested PSUs”. The date on which a PSU becomes a Vested PSU is referred to as its “Vesting Date”. Notwithstanding anything to the contrary herein or in the Plan, the Administrator may at any time accelerate the vesting of all or a portion of the PSU Award.
5.Change in Control. In the event of a Change in Control, the PSU Award shall be assumed, substituted or settled in accordance with Section 14 of the Plan, subject to the following terms:
(a) Performance Condition. If the Change in Control occurs prior to the satisfaction of the Performance Condition (as defined in the Vesting Schedule), the Performance Condition shall be deemed to be satisfied on the date of the Change in Control.
(b) Payout Modifier. If the Change in Control occurs prior to the thirtieth (30th) day following the satisfaction of the Performance Condition, the Payout Modifier (as defined in the Vesting Schedule) shall be determined as if the Performance Period (as defined in the Vesting Schedule) ended on the date of the Change in Control.
(c) Service Condition. The Service Condition (as defined in the Vesting Schedule) shall be deemed to be satisfied on the date of the Change in Control, unless (i) the Change in Control occurs prior to the date of the third anniversary of the grant date of the PSU Award and (ii) the PSU Award is assumed or substituted, in which case, the Service Condition shall be satisfied on the earlier to occur of: (x) the date of the third anniversary of the grant date of the PSU Award, so long as the Grantee remains in continuous employment or service through such date or (y) the date the Grantee is terminated without “Cause” or resigns for “Good Reason” after the date of the Change in Control (as such terms are defined in Exhibit B attached hereto).
(d) Settlement Timing and Form of Payment. The date on which the Service Condition is satisfied in accordance with Section 5(c) of this Agreement shall be the Vesting Date for purposes of Section 3 of this Agreement. Settlement shall be made in cash, except that, if the PSU Award is assumed or substituted, settlement shall be made in shares of the stock subject to the assumed or substituted award.
6.Termination of Employment or Service. Except as otherwise provided in this Agreement (including the Vesting Schedule) or the Plan, the Grantee must remain continuously employed or engaged by the Company or its Affiliates through the Vesting Date and any portion of the PSU Award that is unvested at the time of the Grantee’s termination of employment or service with the Company or its Affiliates for any reason shall be forfeited without payment of consideration upon such date. A change in the status (whether as employee, member of the Board or other non-employee advisor or service provider) in which the Grantee renders service to the Company and its Affiliates or a change in the entity for which the Grantee renders such service shall not constitute a termination of the Grantee’s employment or service for purposes of this Agreement, so long as there is no interruption or termination of the Grantee’s services to the Company and its Affiliates; provided, however, that if the entity employing or engaging the Grantee ceases to be an Affiliate of the Company, as determined by the Administrator, the Grantee’s employment or service shall be considered to have terminated on the date such entity ceased to be an Affiliate.
7.Voting Rights and Dividends. Until such time as PSUs are paid out in shares of Common Stock (if at all), the Grantee shall not have any voting, dividend or other shareholder rights with respect to any shares of Common Stock underlying this PSU Award (“Underlying Shares”). No dividend equivalents shall accrue or be paid to the Grantee with respect to the Underlying Shares.
8.Adjustments Upon Certain Unusual or Nonrecurring Events or Other Events. Upon certain unusual or nonrecurring events, or other events, the terms of these PSUs shall be adjusted by the Administrator pursuant to Section 14 of the Plan.
9.Incorporation of Plan. Notwithstanding anything herein to the contrary, this PSU Award and this Agreement shall be subject to and governed by all the terms and conditions of the Plan. To the extent any provision hereof is inconsistent with a provision of the Plan, the
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provisions of the Plan will govern. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
10.Taxes.
(a) By accepting this Agreement, Grantee hereby elects to either (A) sell shares of Common Stock issuable pursuant to Vested PSUs in an amount and at such time as is determined in accordance with this Section 10, and to allow the Agent (as defined below) to remit the cash proceeds of such sales to the Company as more specifically set forth below (the “Sell to Cover”) to permit Grantee to satisfy any Federal, state, local, foreign or other taxes required by law to be withheld in respect of the PSU Award (“Withholding Obligations”) or (B) make arrangements to the Administrator’s satisfaction under his or her existing 10b5-1 trading plan (“Existing 10b5-1 Plan”) to provide for the satisfaction of any Withholding Obligations. If Grantee does not make arrangements satisfying any Withholding Obligations to the Administrator’s satisfaction under their Existing 10b5-1 Plan by the time of the applicable Vesting Date, then any such Withholding Obligations will be satisfied through a Sell to Cover as outlined in Section 10(b) of this Agreement.
(b) In the event of a Sell to Cover under this Agreement, Grantee acknowledges and agrees as follows:
i.Grantee irrevocably appoints Merrill Lynch, Pierce, Fenner & Smith Inc., or such other registered broker-dealer that is a member of the Financial Industry Regulatory Authority, Inc. as the Administrator may select, as his or her agent (the “Agent”), and authorizes and directs the Agent to:
1.Sell on the open market at the then prevailing market price(s), on Grantee’s behalf, as soon as reasonably practicable on or after each Vesting Date, the number (rounded up to the next whole number) of shares of Common Stock issuable pursuant to Vested PSUs that is sufficient to generate proceeds to cover (A) the Withholding Obligations and (B) all applicable fees and commissions due to, or required to be collected by, the Agent with respect thereto;
2.Remit directly to the Company the proceeds necessary to satisfy the Withholding Obligations;
3.Retain the amount required to cover all applicable fees and commissions due to, or required to be collected by, the Agent, relating directly to the sale of the shares of Common Stock issuable pursuant to Vested PSUs referred to in clause (1) above; and
4.Remit to Grantee any remaining funds from the sale of shares of Common Stock issuable pursuant to Vested PSUs referred to in clause (1).
ii.Grantee acknowledges that its agreement to Sell to Cover and the corresponding authorization and instruction to the Agent set forth in this Section 10 are intended to constitute a “non-Rule 10b5-1 trading arrangement” within the meaning of Item 408(c) of Regulation S-K under the Act, and will be interpreted to comply with the requirements of such Item 408(c) (the Grantee’s agreement to Sell to Cover and the provisions of this Section 10, collectively, the “Trading Plan”). In furtherance thereof, Grantee acknowledges and agrees as follows:
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1.This Trading Plan is being entered into in good faith and not as part of a plan or scheme to evade the requirements of Item 408(c).
2.Grantee is not, as of the date of adoption of this Trading Plan, aware of any material nonpublic information about the Common Stock or the Company.
i.Grantee acknowledges that by accepting this PSU Award, he or she is adopting the Trading Plan to permit Grantee to satisfy Withholding Obligations. Grantee hereby authorizes the Company and the Agent to cooperate and communicate with one another to determine the number of shares of Common Stock that must be sold to satisfy the Withholding Obligations.
ii.Grantee acknowledges that the Agent is under no obligation to arrange for the sale of shares of Common Stock issuable pursuant to Vested PSUs at any particular price under this Trading Plan and that the Agent may effect sales as provided in this Trading Plan in one or more sales and that the average price for executions resulting from bunched orders may be assigned to their account. Grantee further acknowledges that he or she will be responsible for all brokerage fees and other costs of sale associated with this Trading Plan, and agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale. In addition, Grantee acknowledges that it may not be possible to sell shares of Common Stock issuable pursuant to Vested PSUs as provided for in this Trading Plan due to (A) a legal or contractual restriction applicable to Grantee or the Agent, (B) a market disruption, (C) a sale effected pursuant to this Trading Plan that would not comply (or in the reasonable opinion of the Agent’s counsel is likely not to comply) with the Act, (D) the Company’s determination that sales may not be effected under this Trading Plan or (E) rules governing order execution priority on the national exchange where the Common Stock may be traded. If the Agent is not able to sell the shares of Common Stock issuable pursuant to Vested PSUs under this Trading Plan, then Grantee shall continue to be responsible for the timely payment to the Company of all Withholding Obligations.
iii.Grantee acknowledges that regardless of any other term or condition of this Trading Plan, the Agent will not be liable to Grantee for (A) special, indirect, punitive, exemplary, or consequential damages, or incidental losses or damages of any kind, or (B) any failure to perform or for any delay in performance that results from a cause or circumstance that is beyond the Agent’s reasonable control.
iv.Grantee agrees to execute and deliver to the Agent any other agreements or documents as the Agent reasonably deems necessary or appropriate to carry out the purposes and intent of this Trading Plan. The Agent is a third-party beneficiary of this Section 10 and the terms of this Trading Plan.
v.Grantee’s agreement to Sell to Cover and to enter into this Trading Plan is irrevocable. Upon acceptance of the PSU Award, Grantee shall have agreed to Sell to Cover and to enter into this Trading Plan, and Grantee acknowledges that they may not change this decision at any time in the future with respect to the PSU Award. This Trading Plan shall terminate on the earlier of:
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1.the date on which all Withholding Obligations in respect of the PSU Award have been satisfied;
2.Grantee’s, Administrator’s or Agent’s reasonable determination that Grantee has not complied with the Trading Plan or applicable securities laws;
3.receipt by the Agent of a written notice from the Company, Administrator or Grantee regarding: (a) a public announcement having been made of a tender or exchange offer involving the Company’s securities; (b) a definitive agreement having been announced relating to a merger, reorganization, consolidation or similar transaction in which the shares of Common Stock covered by this Trading Plan would be subject to a lock-up provision or would be exchanged or converted into cash, securities or other property; (c) a sale having been made of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity, or a transaction affecting the Company occurring in which the owners of the Company’s outstanding voting power prior to the transaction do not own at least a majority of the outstanding voting power of the successor entity immediately upon completion of the transaction; (d) a dissolution or liquidation of the Company having taken place or being in process, or the commencement or impending commencement of any proceedings in respect of or triggered by the Company’s bankruptcy or insolvency; or (e) this Trading Plan or its attendant transactions possibly causing the breach of a contract or agreement to which the Company is a party or by which the Company is bound;
4.receipt by the Agent of written notice of Grantee’s death or legal incapacity from the Administrator or the Company; or
5.receipt by the Agent of written notice of termination from Grantee that is signed by the Administrator or the Company.
(c) The Company shall have no obligation to deliver shares of Common Stock issuable pursuant to Vested PSUs until all applicable Withholding Obligations have been fully satisfied by Grantee. The Company makes no representation or undertaking regarding the tax treatment of the grant, vesting, or settlement of this PSU Award or the subsequent sale of any of the shares of Common Stock issuable thereunder. The Company does not commit and is under no obligation to structure this PSU Award to reduce or eliminate Grantee’s tax liability.
3.Section 409A of the Code. This PSU Award is intended to comply with the requirements of Section 409A of the Code or an exemption thereto, and this Agreement shall be interpreted in a manner consistent with this intent in order to avoid the imposition of any additional tax, interest or penalties under Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement, in no event shall any delivery of shares of Common Stock or other payment pursuant to this PSU Award occur after the short-term deferral period described in Treas. Reg. § 1.409A-1(b)(4). In no event shall the Company be liable for any additional tax, interest or penalties that may be imposed on the Grantee pursuant to Section 409A of the Code or any damages for failing to comply with Section 409A of the Code or an exemption thereto.
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4.No Right to Continued Employment or Service. Nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/or its Affiliates to terminate Grantee’s employment at any time or for any reason in accordance with the Company’s Bylaws and governing law, nor shall any terms of the Plan or this Agreement confer upon Grantee any right to continue his or her employment for any specified period of time. Neither this Agreement nor any benefits arising under the Plan or this Agreement shall constitute an employment contract with the Company, any Subsidiary and/or its Affiliates. If Grantee is a non-employee consultant or advisor, nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/or its Affiliates to terminate Grantee’s service in accordance with the terms of the contract with such consultant or advisor. In no event shall any of the terms of the Plan or this Agreement itself confer upon Grantee any right to continue his or her service for any specified period of time.
5.Notices. Any notice or other communication given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the Company at its principal place of business or to the Grantee at the address on the Company’s records or, in either case, at such other address as one party may subsequently furnish to the other party in writing. Additionally, if such notice or communication is by the Company to the Grantee, the Company may provide such notice electronically (including via email). Any such notice shall be deemed to have been given (a) on the date of postmark, in the case of notice by mail, or (b) on the date of delivery, if delivered in person or electronically.
6.Service Agreements. If any employment, consulting or similar services agreement between the Grantee and the Company or any of its Affiliates, as may be in effect from time to time (“Service Agreement”), conflicts with or is inconsistent with this Agreement, this Agreement shall control. Without limiting the generality of the foregoing sentence, this Agreement shall control over any Service Agreement with respect to the treatment of the PSU Award in the event of the Grantee’s termination of employment or service and in the event of a Change in Control.
7.Discretion to Reduce Payout. The Board or the Committee may, in its discretion, reduce the amount of any payment that would otherwise be made under this Agreement in the event of the Grantee’s (a) violation of any law or regulation applicable to the business of the Company or any of its Affiliates or (b) action, or failure to act, that was performed in bad faith and to the detriment of the Company or any of its Affiliates.
* * *
INSMED INCORPORATED
By: /s/ Sara Bonstein
Chief Financial Officer
The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned.
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By: /s/ /$ParticipantName$/
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Exhibit A
Vesting Schedule for PSU Award
The PSU Award is subject to the performance-based vesting condition (“Performance Condition”) and the service-based vesting condition (“Service Condition”) described in Part I and Part II of this Exhibit A, respectively. Except as provided in Section 5 of this Agreement, (i) both the Performance Condition and the Service Condition must be satisfied in order for any portion of the PSU Award to vest and no payout shall occur pursuant to the PSU Award prior thereto, and (ii) the number of PSUs that shall become Vested PSUs shall be determined based on the application of the total shareholder return modifier (“Payout Modifier”) described in Part III of this Exhibit A.
I. Performance Condition
The Performance Condition is satisfied only if the press release announcing top line results from the Phase 3, Randomized, Double-Blind, Placebo-Controlled Study to Assess the Efficacy, Safety, and Tolerability of Brensocatib Administered Once Daily for 52 Weeks in Subjects With Non-Cystic Fibrosis Bronchiectasis (“Press Release”) is issued on or before June 30, 2024 or such other later date as is determined by the Board or the Committee (such date, the “Press Release Deadline”).
Except as provided in Section 5 of the Agreement, if the Press Release is not issued on or before the Press Release Deadline, the Performance Condition shall not be satisfied and the Grantee shall forfeit the PSU Award for no consideration on the day immediately following the Press Release Deadline.
II. Service Condition
The Service Condition is satisfied only if the Grantee remains in continuous employment or service with the Company and its Affiliates through the later of: (a) the date of the third anniversary of the grant date of the PSU Award and (b) the date that the New Drug Application for Brensocatib (“Brensocatib NDA”) is accepted by the U.S. Food and Drug Administration (such later date, the “Service Condition Date”).
Except as provided in Section 5 of the Agreement, if the Grantee does not remain in continuous employment or service with the Company and its Affiliates through the Service Condition Date, the Service Condition shall not be satisfied and the Grantee shall forfeit the PSU Award for no consideration on the date of the Grantee’s termination of employment or service.
In the event the Board determines not to pursue or submit the Brensocatib NDA, the Service Condition shall not be satisfied and the Grantee shall forfeit the PSU Award for no consideration on the date of such determination by the Board.
III. Payout Modifier
Upon the satisfaction of both the Performance Condition and the Service Condition, the number of PSUs that shall become Vested PSUs shall be equal to the product of: (a) the number of Target PSUs granted pursuant to the PSU Award and (b) the Payout Modifier specified in the chart below based on the percentile ranking of the Company’s TSR (as defined below) as compared to the TSR of the Peer Group (as defined below); provided that, if the Company’s TSR
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is negative, the Payout Modifier shall be zero. The Payout Modifier shall not be subject to linear interpolation.
| TSR Ranking of Company Compared To Peer Group | Payout Modifier | ||||
| <25th percentile | 0.00 | ||||
| ≥ 25th percentile to < 50th percentile | 0.50 | ||||
| ≥ 50th percentile to < 75th percentile | 1.00 | ||||
| ≥ 75th percentile to < 90th percentile | 2.00 | ||||
| ≥ 90th percentile | 2.50 | ||||
“Closing Average Price” means, with respect to a company, the average closing price per share of the company’s common stock on the Nasdaq market on which such common stock is listed for the thirty (30) calendar day period immediately preceding the last day of the Performance Period (inclusive of such last day).
“Peer Group” means the companies comprising the NASDAQ Biotechnology Index as of January 1, 2022, subject to the following adjustments:
•Companies who are suspended or delisted from a Nasdaq market for reasons such as financial insolvency or bankruptcy will remain in Peer Group and be ranked at the bottom of the Peer Group;
•The TSR for companies who are acquired by or merge with another company in the Peer Group will be calculated with respect to the company associated with the surviving stock exchange ticker, and the company associated with the discontinued stock exchange ticker will be removed from the Peer Group; and
•Companies who are acquired by another company outside of the Peer Group or who cease to be listed on a Nasdaq market for reasons other than poor performance will be removed from the Peer Group.
“Performance Period” means the period commencing on January 1, 2022 and ending on the thirtieth (30th) day immediately following the date the Press Release is issued in satisfaction of the Performance Condition. For illustrative purposes only, if the Press Release is issued on March 1, 2024, the Performance Period will end on March 31, 2024.
“Starting Average Price” means, with respect to a company, the average closing price per share of the company’s common stock on the Nasdaq market on which such common stock is listed for the thirty (30) calendar day period immediately preceding the first day of the Performance Period (excluding such first day) (i.e., the period commencing on December 2, 2021 and ending on December 31, 2021).
“TSR” means, with respect to a company, an amount (expressed as a percentage return) equal to: (a) the sum of (i) the Closing Average Price minus the Starting Average Price and (ii) all dividends paid on a per share basis during the Performance Period (calculated as if such dividends were reinvested in such company’s common stock on the applicable ex-dividend date); divided by (b) the Starting Average Price. The Committee shall have the sole authority to determine the TSR for the Company and the Peer Group and may make appropriate equitable adjustments to account for extraordinary items affecting TSR.
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Exhibit B
Definitions
For purposes of this Agreement:
“Cause” shall have the meaning set forth in the Grantee’s Service Agreement or, if the Grantee does not have a Service Agreement, shall mean:
(i) a conviction of the Grantee, or a plea of nolo contendere, to a felony involving moral turpitude; or
(ii) willful misconduct or gross negligence by the Grantee resulting, in either case, in material economic harm to the Company or any of its Affiliates; or
(iii) a willful failure by the Grantee to carry out the reasonable and lawful directions of the Board and failure by the Grantee to remedy the failure within thirty (30) days after receipt of written notice of the same by the Board; or
(iv) fraud, embezzlement, theft or dishonesty of a material nature by the Grantee against the Company or any of its Affiliates, or a willful material violation by the Grantee of a policy or procedure of the Company or any of its Affiliates, resulting, in any case, in material economic harm to the Company or any of its Affiliates; or
(v) a willful material breach by the Grantee of any written agreement between the Grantee and the Company or any of its Affiliates and failure by the Grantee to remedy the material breach within 30 days after receipt of written notice of the same by the Board.
“Good Reason” shall have the meaning set forth in the Grantee’s Service Agreement or, if the Grantee does not have a Service Agreement, shall mean the occurrence of any of the following events without the Grantee’s prior written consent:
(i) a material diminution in the Grantee’s base compensation; or
(ii) a material diminution in the Grantee’s authority, duties, or responsibilities; or
(iii) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Grantee is required to report; or
(iv) a relocation of the Grantee to be based at any office or location outside of 50 miles from the location of employment or service as of the grant date of the PSU Award, except for travel reasonably required in the performance of the Grantee’s responsibilities; or
(v) any material breach by the Company of this Agreement.
Good Reason shall not be deemed to exist unless the Grantee’s termination of employment for Good Reason occurs within six months following the initial existence of one of the conditions specified in clauses (i) through (v) above, the Grantee provides the Company with written notice of the existence of such condition within 90 days after the initial existence of the condition, and the Company fails to remedy the condition within 30 days after its receipt of such notice.
References to the Company (or the Board or any Affiliate thereof) as used in the definitions for “Cause” and “Good Reason” shall refer to any successor entity of the Company (and the board of directors or affiliate of such successor entity), as applicable.
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INSMED INCORPORATED
PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE 2019 INCENTIVE PLAN FOR NON-U.S. GRANTEES
Grantee Name: /$ParticipantName$/
Target Number of PSUs: /$GrantTxt2$/
Grant Date: /$GrantDate$/
Pursuant to the Insmed Incorporated 2019 Incentive Plan (the “Plan”) as amended through the date hereof and this Performance-Based Restricted Stock Unit Award Agreement (together with Exhibit A attached hereto, this “Agreement”), Insmed Incorporated (the “Company”) hereby grants an award of performance-based restricted stock units (the “PSUs” or the “PSU Award”) to the individual named above (the “Grantee”). The target number of PSUs subject to this PSU Award is /$GrantTxt2$/ (the “Target PSUs”). Each PSU corresponds to the right to receive one share of Common Stock, subject to the restrictions and conditions set forth herein and in the Plan. The actual number of PSUs that will vest and be settled into shares of Common Stock pursuant to this PSU Award shall depend on the achievement of the performance and service conditions described in Exhibit A attached hereto (the “Vesting Schedule”). All terms used herein that are defined in the Plan have the same meaning given them in the Plan.
The Company acknowledges the receipt from the Grantee of consideration with respect to the par value of the shares of Common Stock subject to the PSU Award in the form of cash, past or future services rendered to the Company by the Grantee or such other form of consideration as is acceptable to the Administrator and permitted under the Plan and applicable law.
1.Agreement with Terms. Execution of this Agreement by the Grantee or receipt of any benefits under this Agreement by the Grantee shall constitute the Grantee’s acknowledgement of and agreement with all of the provisions of this Agreement and of the Plan that are applicable to this PSU Award, and the Company shall administer this Agreement accordingly.
2.Restrictions and Conditions on Award. PSUs granted herein shall be subject to all the terms, conditions and restrictions set forth herein and in the Plan.
3.Timing and Form of Payout of Restricted Stock Units. As soon as practicable (but in no event later than 60 days) following the applicable Vesting Date (as defined below), the Vested PSUs (as defined below) shall be settled in shares of Common Stock (except as provided in Section 5 of this Agreement).
4.Vesting of Award. Except as set forth in Section 5 or Section 6 of this Agreement, the PSUs will vest in accordance with the Vesting Schedule. PSUs that have vested in accordance with the Vesting Schedule or in accordance with Section 5 or Section 6 of this Agreement are referred to herein as “Vested PSUs”. The date on which a PSU becomes a Vested PSU is referred to as its “Vesting Date”. Notwithstanding anything to the contrary herein or in the Plan, the Administrator may at any time accelerate the vesting of all or a portion of the PSU Award.
5.Change in Control. In the event of a Change in Control, the PSU Award shall be assumed, substituted or settled in accordance with Section 14 of the Plan, subject to the following terms:
(a) Performance Condition. If the Change in Control occurs prior to the satisfaction of the Performance Condition (as defined in the Vesting Schedule), the Performance Condition shall be deemed to be satisfied on the date of the Change in Control.
(b) Payout Modifier. If the Change in Control occurs prior to the thirtieth (30th) day following the satisfaction of the Performance Condition, the Payout Modifier (as defined in the Vesting Schedule) shall be determined as if the Performance Period (as defined in the Vesting Schedule) ended on the date of the Change in Control.
(c) Service Condition. The Service Condition (as defined in the Vesting Schedule) shall be deemed to be satisfied on the date of the Change in Control, unless (i) the Change in Control occurs prior to the date of the third anniversary of the grant date of the PSU Award and (ii) the PSU Award is assumed or substituted, in which case, the Service Condition shall be satisfied on the earlier to occur of: (x) the date of the third anniversary of the grant date of the PSU Award, so long as the Grantee remains in continuous employment or service through such date or (y) the date the Grantee is terminated without “Cause” or resigns for “Good Reason” after the date of the Change in Control (as such terms are defined in Exhibit B attached hereto).
(d) Settlement Timing and Form of Payment. The date on which the Service Condition is satisfied in accordance with Section 5(c) of this Agreement shall be the Vesting Date for purposes of Section 3 of this Agreement. Settlement shall be made in cash, except that, if the PSU Award is assumed or substituted, settlement shall be made in shares of the stock subject to the assumed or substituted award.
6.Termination of Employment or Service. Except as otherwise provided in this Agreement (including the Vesting Schedule) or the Plan, the Grantee must remain continuously employed or engaged by the Company or its Affiliates through the Vesting Date and any portion of the PSU Award that is unvested at the time of the Grantee’s termination of employment or service with the Company or its Affiliates for any reason shall be forfeited without payment of consideration upon such date. A change in the status (whether as employee, member of the Board or other non-employee advisor or service provider) in which the Grantee renders service to the Company and its Affiliates or a change in the entity for which the Grantee renders such service shall not constitute a termination of the Grantee’s employment or service for purposes of this Agreement, so long as there is no interruption or termination of the Grantee’s services to the Company and its Affiliates; provided, however, that if the entity employing or engaging the Grantee ceases to be an Affiliate of the Company, as determined by the Administrator, the Grantee’s employment or service shall be considered to have terminated on the date such entity ceased to be an Affiliate.
7.Voting Rights and Dividends. Until such time as PSUs are paid out in shares of Common Stock (if at all), the Grantee shall not have any voting, dividend or other shareholder rights with respect to any shares of Common Stock underlying this PSU Award (“Underlying Shares”). No dividend equivalents shall accrue or be paid to the Grantee with respect to the Underlying Shares.
8.Adjustments Upon Certain Unusual or Nonrecurring Events or Other Events. Upon certain unusual or nonrecurring events, or other events, the terms of these PSUs shall be adjusted by the Administrator pursuant to Section 14 of the Plan.
9.Incorporation of Plan. Notwithstanding anything herein to the contrary, this PSU Award and this Agreement shall be subject to and governed by all the terms and conditions of the Plan. To the extent any provision hereof is inconsistent with a provision of the Plan, the
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provisions of the Plan will govern. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
10. Taxes.
(a) By accepting this Agreement, Grantee hereby elects to either (A) sell shares of Common Stock issuable pursuant to Vested PSUs in an amount and at such time as is determined in accordance with this Section 10, and to allow the Agent (as defined below) to remit the cash proceeds of such sales to the Company as more specifically set forth below (the “Sell to Cover”) to permit Grantee to satisfy any Federal, state, local, foreign or other taxes (including without limitation social insurance contributions or national insurance contributions) required by law to be withheld in respect of the PSU Award (“Withholding Obligations”) or (B) make arrangements to the Administrator’s satisfaction under his or her existing 10b5-1 trading plan (“Existing 10b5-1 Plan”) to provide for the satisfaction of any Withholding Obligations. If Grantee does not make arrangements satisfying any Withholding Obligations to the Administrator’s satisfaction under their Existing 10b5-1 Plan by the time of the applicable Vesting Date, then any such Withholding Obligations will be satisfied through a Sell to Cover as outlined in Section 10(b) of this Agreement.
(b) In the event of a Sell to Cover under this Agreement, Grantee acknowledges and agrees as follows:
i.Grantee irrevocably appoints Merrill Lynch, Pierce, Fenner & Smith Inc., or such other registered broker-dealer that is a member of the Financial Industry Regulatory Authority, Inc. as the Administrator may select, as his or her agent (the “Agent”), and authorizes and directs the Agent to:
1.Sell on the open market at the then prevailing market price(s), on Grantee’s behalf, as soon as reasonably practicable on or after each Vesting Date, the number (rounded up to the next whole number) of shares of Common Stock issuable pursuant to Vested PSUs that is sufficient to generate proceeds to cover (A) the Withholding Obligations and (B) all applicable fees and commissions due to, or required to be collected by, the Agent with respect thereto;
2.Remit directly to the Company the proceeds necessary to satisfy the Withholding Obligations;
3.Retain the amount required to cover all applicable fees and commissions due to, or required to be collected by, the Agent, relating directly to the sale of the shares of Common Stock issuable pursuant to Vested PSUs referred to in clause (1) above; and
4.Remit to Grantee any remaining funds from the sale of shares of Common Stock issuable pursuant to Vested PSUs referred to in clause (1).
ii.Grantee acknowledges that its agreement to Sell to Cover and the corresponding authorization and instruction to the Agent set forth in this Section 10 are intended to constitute a “non-Rule 10b5-1 trading arrangement” within the meaning of Item 408(c) of Regulation S-K under the Act, and will be interpreted to comply with the requirements of such Item 408(c) (the Grantee’s agreement to Sell to Cover and the provisions of
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this Section 10, collectively, the “Trading Plan”). In furtherance thereof, Grantee acknowledges and agrees as follows:
1.This Trading Plan is being entered into in good faith and not as part of a plan or scheme to evade the requirements of Item 408(c).
2.Grantee is not, as of the date of adoption of this Trading Plan, aware of any material nonpublic information about the Common Stock or the Company.
iii.Grantee acknowledges that by accepting this PSU Award, he or she is adopting the Trading Plan to permit Grantee to satisfy Withholding Obligations. Grantee hereby authorizes the Company and the Agent to cooperate and communicate with one another to determine the number of shares of Common Stock that must be sold to satisfy the Withholding Obligations.
iv.Grantee acknowledges that the Agent is under no obligation to arrange for the sale of shares of Common Stock issuable pursuant to Vested PSUs at any particular price under this Trading Plan and that the Agent may effect sales as provided in this Trading Plan in one or more sales and that the average price for executions resulting from bunched orders may be assigned to their account. Grantee further acknowledges that he or she will be responsible for all brokerage fees and other costs of sale associated with this Trading Plan, and agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale. In addition, Grantee acknowledges that it may not be possible to sell shares of Common Stock issuable pursuant to Vested PSUs as provided for in this Trading Plan due to (A) a legal or contractual restriction applicable to Grantee or the Agent, (B) a market disruption, (C) a sale effected pursuant to this Trading Plan that would not comply (or in the reasonable opinion of the Agent’s counsel is likely not to comply) with the Act, (D) the Company’s determination that sales may not be effected under this Trading Plan or (E) rules governing order execution priority on the national exchange where the Common Stock may be traded. If the Agent is not able to sell the shares of Common Stock issuable pursuant to Vested PSUs under this Trading Plan, then Grantee shall continue to be responsible for the timely payment to the Company of all Withholding Obligations.
v.Grantee acknowledges that regardless of any other term or condition of this Trading Plan, the Agent will not be liable to Grantee for (A) special, indirect, punitive, exemplary, or consequential damages, or incidental losses or damages of any kind, or (B) any failure to perform or for any delay in performance that results from a cause or circumstance that is beyond the Agent’s reasonable control.
vi.Grantee agrees to execute and deliver to the Agent any other agreements or documents as the Agent reasonably deems necessary or appropriate to carry out the purposes and intent of this Trading Plan. The Agent is a third-party beneficiary of this Section 10 and the terms of this Trading Plan.
vii.Grantee’s agreement to Sell to Cover and to enter into this Trading Plan is irrevocable. Upon acceptance of the PSU Award, Grantee shall have agreed to Sell to Cover and to enter into this Trading Plan, and Grantee
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acknowledges that they may not change this decision at any time in the future with respect to the PSU Award. This Trading Plan shall terminate on the earlier of:
1.the date on which all Withholding Obligations in respect of the PSU Award have been satisfied;
2.Grantee’s, Administrator’s or Agent’s reasonable determination that Grantee has not complied with the Trading Plan or applicable securities laws;
3.receipt by the Agent of a written notice from the Company, Administrator or Grantee regarding: (a) a public announcement having been made of a tender or exchange offer involving the Company’s securities; (b) a definitive agreement having been announced relating to a merger, reorganization, consolidation or similar transaction in which the shares of Common Stock covered by this Trading Plan would be subject to a lock-up provision or would be exchanged or converted into cash, securities or other property; (c) a sale having been made of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity, or a transaction affecting the Company occurring in which the owners of the Company’s outstanding voting power prior to the transaction do not own at least a majority of the outstanding voting power of the successor entity immediately upon completion of the transaction; (d) a dissolution or liquidation of the Company having taken place or being in process, or the commencement or impending commencement of any proceedings in respect of or triggered by the Company’s bankruptcy or insolvency; or (e) this Trading Plan or its attendant transactions possibly causing the breach of a contract or agreement to which the Company is a party or by which the Company is bound;
4.receipt by the Agent of written notice of Grantee’s death or legal incapacity from the Administrator or the Company; or
5.receipt by the Agent of written notice of termination from Grantee that is signed by the Administrator or the Company.
(c) The Company shall have no obligation to deliver shares of Common Stock issuable pursuant to Vested PSUs until all applicable Withholding Obligations have been fully satisfied by Grantee. The Company makes no representation or undertaking regarding the tax treatment of the grant, vesting, or settlement of this PSU Award or the subsequent sale of any of the shares of Common Stock issuable thereunder. The Company does not commit and is under no obligation to structure this PSU Award to reduce or eliminate Grantee’s tax liability. Grantee authorizes the Company to disclose all information on Grantee and his or her participation in this Agreement that is or may be relevant for the calculation of applicable tax obligations to the competent local tax authorities and the Company’s Affiliates.
6.Section 409A of the Code. This PSU Award is intended to comply with the requirements of Section 409A of the Code or an exemption thereto, and this Agreement shall be interpreted in a manner consistent with this intent in order to avoid the imposition of any additional tax, interest or penalties under Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement, in no event shall any delivery of shares of Common Stock or
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other payment pursuant to this PSU Award occur after the short-term deferral period described in Treas. Reg. § 1.409A-1(b)(4). In no event shall the Company be liable for any additional tax, interest or penalties that may be imposed on the Grantee pursuant to Section 409A of the Code or any damages for failing to comply with Section 409A of the Code or an exemption thereto.
7.Notices. Any notice or other communication given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the Company at its principal place of business or to the Grantee at the address on the Company’s records or, in either case, at such other address as one party may subsequently furnish to the other party in writing. Additionally, if such notice or communication is by the Company to the Grantee, the Company may provide such notice electronically (including via email). Any such notice shall be deemed to have been given (a) on the date of postmark, in the case of notice by mail, or (b) on the date of delivery, if delivered in person or electronically.
8.No Right to Continued Employment and Other Service Conditions. As a condition to accepting this PSU Award, Grantee acknowledges and agrees as follows:
a.Nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/or its Affiliates to terminate Grantee’s employment at any time or for any reason in accordance with the Company’s Bylaws, governing law and any applicable employment agreement;
b.No terms of the Plan or this Agreement shall confer upon Grantee any right to continue his or her employment for any specified period of time.
c.Neither this Agreement nor any benefits arising under the Plan or this Agreement shall constitute an employment contract with the Company, any Subsidiary and/or its Affiliates.
d.If Grantee is not an employee, nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries and/or its Affiliates to terminate the Grantee’s service, (i) if a member of the Board, on the Board at any time or for any reason in accordance with the Company’s Bylaws and governing law, or (ii) if a non-employee consultant or advisor, in accordance with the terms of the contract with such consultant or advisor.
e.In no event shall any of the terms of the Plan or this Agreement itself confer upon Grantee any right to continue his or her service for any specified period of time.
f.Any notice period mandated under applicable law shall not be treated as service for the purpose of determining the vesting of this PSU Award; and Grantee’s right to vesting of this PSU Award after termination of service, if any, will be measured by the date of termination of Grantee’s active service and will not be extended by any notice period mandated under applicable law. Subject to the foregoing and the provisions of this Agreement, the Company, in its sole discretion, shall determine whether Grantee’s service has terminated and the effective date of such termination.
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g.The grant of this PSU Award is voluntary and occasional and does not create any contractual or other right to receive future grants of PSU Awards, or benefits in lieu of PSU Awards, even if PSU Awards have been granted repeatedly in the past. All decisions with respect to future PSU Award grants, if any, will be at the sole discretion of the Company.
h.Grantee is voluntarily participating in the grant of this PSU Award.
i.This PSU Award is an extraordinary item that does not constitute compensation of any kind for service of any kind rendered to the Company or its Affiliates or Subsidiaries, and which is outside the scope of Grantee’s employment contract, if any. This PSU Award is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculating any severance, resignation, termination, redundancy, end-of-service payments, bonuses, long-service awards, pension or retirement benefits or similar payments.
j.The future value of the underlying shares of Common Stock is unknown and cannot be predicted with certainty. The value of the shares may increase or decrease.
k.No claim or entitlement to compensation or damages arises from termination of this PSU Award or diminution in value of this PSU Award or shares of Common Stock subject thereto, and Grantee irrevocably releases the Company and its Affiliates and Subsidiaries from any such claim that may arise. If, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen then, by signing this Agreement, Grantee shall be deemed irrevocably to have waived Grantee’s entitlement to pursue such a claim.
9.Data Privacy. Grantee understands that the Company may collect, use and transfer, in electronic or other form, Grantee’s personal data as described in this Agreement for the exclusive purpose of implementing, administering and managing Grantee’s PSU Award. Grantee understands that the Company holds certain personal information about Grantee, including, but not limited to, Grantee’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares or directorships held in the Company, details of all PSU Awards or any other entitlement to shares awarded, canceled, exercised, vested, unvested or outstanding in Grantee’s favor, for the purpose of implementing, administering and managing Grantee’s PSU Award (“Data”). Grantee understands that Data may be transferred to any third parties assisting in the implementation, administration and management of this PSU Award, that these recipients may be located in Grantee’s country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than Grantee’s country. Grantee understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting Grantee’s local human resources representative. Grantee understands that recipients may receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing Grantee’s PSU Award, including any requisite transfer of such Data as may be required to a broker or other third party with whom Grantee may elect to deposit any shares acquired pursuant to this PSU Award. Grantee understands that Data will be held only as long as is necessary to implement, administer and manage Grantee’s PSU Award. Grantee understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data or require any necessary amendments to Data, by contacting in writing Grantee’s local human resources representative. For more information on the processing of Data for the purposes set out above, Grantee understands that he or she may contact Grantee’s
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local human resources representative. For Grantees located within the European Union, Grantee understands that Data will always be processed in accordance with the Insmed EU Employee Personal Data Processing Notice, a copy of which is available from Grantee’s local human resources representative.
10.Language. If this Agreement or any other document related to the Plan is translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
11.Service Agreements. If any employment, consulting or similar services agreement between the Grantee and the Company or any of its Affiliates, as may be in effect from time to time (“Service Agreement”), conflicts with or is inconsistent with this Agreement, this Agreement shall control. Without limiting the generality of the foregoing sentence, this Agreement shall control over any Service Agreement with respect to the treatment of the PSU Award in the event of the Grantee’s termination of employment or service and in the event of a Change in Control.
12.Discretion to Reduce Payout. The Board or the Committee may, in its discretion, reduce the amount of any payment that would otherwise be made under this Agreement in the event of the Grantee’s (a) violation of any law or regulation applicable to the business of the Company or any of its Affiliates or (b) action, or failure to act, that was performed in bad faith and to the detriment of the Company or any of its Affiliates.
13.Annex of Country-Specific Terms. Notwithstanding any provisions in this Agreement, this PSU Award may be subject to special terms and conditions set forth in the Annex to this Agreement for Grantee’s country of residence. Moreover, if Grantee relocates to one of the countries included in the Annex, the special terms and conditions for such country will apply to Grantee, to the extent the Company determines at its discretion that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. The Annex constitutes part of this Agreement.
INSMED INCORPORATED
By: /s/ Sara Bonstein
Chief Financial Officer
The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned.
By: /s/ /$ParticipantName$/
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Exhibit A
Vesting Schedule for PSU Award
The PSU Award is subject to the performance-based vesting condition (“Performance Condition”) and the service-based vesting condition (“Service Condition”) described in Part I and Part II of this Exhibit A, respectively. Except as provided in Section 5 of this Agreement, (i) both the Performance Condition and the Service Condition must be satisfied in order for any portion of the PSU Award to vest and no payout shall occur pursuant to the PSU Award prior thereto, and (ii) the number of PSUs that shall become Vested PSUs shall be determined based on the application of the total shareholder return modifier (“Payout Modifier”) described in Part III of this Exhibit A.
I. Performance Condition
The Performance Condition is satisfied only if the press release announcing top line results from the Phase 3, Randomized, Double-Blind, Placebo-Controlled Study to Assess the Efficacy, Safety, and Tolerability of Brensocatib Administered Once Daily for 52 Weeks in Subjects With Non-Cystic Fibrosis Bronchiectasis (“Press Release”) is issued on or before June 30, 2024 or such other later date as is determined by the Board or the Committee (such date, the “Press Release Deadline”).
Except as provided in Section 5 of the Agreement, if the Press Release is not issued on or before the Press Release Deadline, the Performance Condition shall not be satisfied and the Grantee shall forfeit the PSU Award for no consideration on the day immediately following the Press Release Deadline.
II. Service Condition
The Service Condition is satisfied only if the Grantee remains in continuous employment or service with the Company and its Affiliates through the later of: (a) the date of the third anniversary of the grant date of the PSU Award and (b) the date that the New Drug Application for Brensocatib (“Brensocatib NDA”) is accepted by the U.S. Food and Drug Administration (such later date, the “Service Condition Date”).
Except as provided in Section 5 of the Agreement, if the Grantee does not remain in continuous employment or service with the Company and its Affiliates through the Service Condition Date, the Service Condition shall not be satisfied and the Grantee shall forfeit the PSU Award for no consideration on the date of the Grantee’s termination of employment or service.
In the event the Board determines not to pursue or submit the Brensocatib NDA, the Service Condition shall not be satisfied and the Grantee shall forfeit the PSU Award for no consideration on the date of such determination by the Board.
III. Payout Modifier
Upon the satisfaction of both the Performance Condition and the Service Condition, the number of PSUs that shall become Vested PSUs shall be equal to the product of: (a) the number of Target PSUs granted pursuant to the PSU Award and (b) the Payout Modifier specified in the chart below based on the percentile ranking of the Company’s TSR (as defined below) as compared to the TSR of the Peer Group (as defined below); provided that, if the Company’s TSR
9
is negative, the Payout Modifier shall be zero. The Payout Modifier shall not be subject to linear interpolation.
| TSR Ranking of Company Compared To Peer Group | Payout Modifier | ||||
| <25th percentile | 0.00 | ||||
| ≥ 25th percentile to < 50th percentile | 0.50 | ||||
| ≥ 50th percentile to < 75th percentile | 1.00 | ||||
| ≥ 75th percentile to < 90th percentile | 2.00 | ||||
| ≥ 90th percentile | 2.50 | ||||
“Closing Average Price” means, with respect to a company, the average closing price per share of the company’s common stock on the Nasdaq market on which such common stock is listed for the thirty (30) calendar day period immediately preceding the last day of the Performance Period (inclusive of such last day).
“Peer Group” means the companies comprising the NASDAQ Biotechnology Index as of January 1, 2022, subject to the following adjustments:
•Companies who are suspended or delisted from a Nasdaq market for reasons such as financial insolvency or bankruptcy will remain in Peer Group and be ranked at the bottom of the Peer Group;
•The TSR for companies who are acquired by or merge with another company in the Peer Group will be calculated with respect to the company associated with the surviving stock exchange ticker, and the company associated with the discontinued stock exchange ticker will be removed from the Peer Group; and
•Companies who are acquired by another company outside of the Peer Group or who cease to be listed on a Nasdaq market for reasons other than poor performance will be removed from the Peer Group.
“Performance Period” means the period commencing on January 1, 2022 and ending on the thirtieth (30th) day immediately following the date the Press Release is issued in satisfaction of the Performance Condition. For illustrative purposes only, if the Press Release is issued on March 1, 2024, the Performance Period will end on March 31, 2024.
“Starting Average Price” means, with respect to a company, the average closing price per share of the company’s common stock on the Nasdaq market on which such common stock is listed for the thirty (30) calendar day period immediately preceding the first day of the Performance Period (excluding such first day) (i.e., the period commencing on December 2, 2021 and ending on December 31, 2021).
“TSR” means, with respect to a company, an amount (expressed as a percentage return) equal to: (a) the sum of (i) the Closing Average Price minus the Starting Average Price and (ii) all dividends paid on a per share basis during the Performance Period (calculated as if such dividends were reinvested in such company’s common stock on the applicable ex-dividend date); divided by (b) the Starting Average Price. The Committee shall have the sole authority to determine the TSR for the Company and the Peer Group and may make appropriate equitable adjustments to account for extraordinary items affecting TSR.
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Exhibit B
Definitions
For purposes of this Agreement:
“Cause” shall have the meaning set forth in the Grantee’s Service Agreement or, if the Grantee does not have a Service Agreement, shall mean:
(i) a conviction of the Grantee, or a plea of nolo contendere, to a felony involving moral turpitude; or
(ii) willful misconduct or gross negligence by the Grantee resulting, in either case, in material economic harm to the Company or any of its Affiliates; or
(iii) a willful failure by the Grantee to carry out the reasonable and lawful directions of the Board and failure by the Grantee to remedy the failure within thirty (30) days after receipt of written notice of the same by the Board; or
(iv) fraud, embezzlement, theft or dishonesty of a material nature by the Grantee against the Company or any of its Affiliates, or a willful material violation by the Grantee of a policy or procedure of the Company or any of its Affiliates, resulting, in any case, in material economic harm to the Company or any of its Affiliates; or
(v) a willful material breach by the Grantee of any written agreement between the Grantee and the Company or any of its Affiliates and failure by the Grantee to remedy the material breach within 30 days after receipt of written notice of the same by the Board.
“Good Reason” shall have the meaning set forth in the Grantee’s Service Agreement or, if the Grantee does not have a Service Agreement, shall mean the occurrence of any of the following events without the Grantee’s prior written consent:
(i) a material diminution in the Grantee’s base compensation; or
(ii) a material diminution in the Grantee’s authority, duties, or responsibilities; or
(iii) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Grantee is required to report; or
(iv) a relocation of the Grantee to be based at any office or location outside of 50 miles from the location of employment or service as of the grant date of the PSU Award, except for travel reasonably required in the performance of the Grantee’s responsibilities; or
(v) any material breach by the Company of this Agreement.
Good Reason shall not be deemed to exist unless the Grantee’s termination of employment for Good Reason occurs within six months following the initial existence of one of the conditions specified in clauses (i) through (v) above, the Grantee provides the Company with written notice of the existence of such condition within 90 days after the initial existence of the condition, and the Company fails to remedy the condition within 30 days after its receipt of such notice.
References to the Company (or the Board or any Affiliate thereof) as used in the definitions for “Cause” and “Good Reason” shall refer to any successor entity of the Company (and the board of directors or affiliate of such successor entity), as applicable.
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ANNEX
TO
INSMED INCORPORATED
PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE 2019 INCENTIVE PLAN
ADDITIONAL NOTICES, TERMS AND CONDITIONS FOR NON-US EMPLOYEES
Further Terms and Conditions of the PSU Award. It is understood and agreed that the PSU Award evidenced by the Agreement to which this is annexed is subject to the following additional terms and conditions:
Grantee understands that this Annex includes special terms and conditions applicable to Grantee if Grantee resides in one of the countries below. These terms and conditions are in addition to those set forth in the Agreement and the Plan. Any capitalized term used in this Annex without definition shall have the meaning ascribed to it in the Agreement or the Plan, as applicable.
Grantee further understands that this Annex also includes information relating to laws and regulatory requirements of which Grantee should be aware with respect to his or her participation in the Plan. The information is based on the laws in effect in the respective countries as of January 2021. Such laws are often complex and change frequently. As a result, Grantee understands that the Company strongly recommends that Grantee not rely on the information herein as the only source of information relating to the consequences of participation in the Plan because the information may be out of date at the time that Grantee’s PSU Award is settled or Grantee sells shares of Common Stock acquired under the Plan.
Finally, Grantee understands that if: (a) Grantee is a citizen or resident of a country other than the one in which Grantee is currently working, (b) transfers employment after grant of the PSU Award, or (c) is considered a resident of another country for local law purposes, the information contained herein may not apply to Grantee, and the Company shall, in its discretion, determine to what extent the terms and conditions contained herein shall apply.
The Company may, from time to time, add or impose additional terms and conditions in respect of Grantee’s PSU Award in order to ensure compliance with any local laws and regulations.
BELGIUM
Belgian Securities Disclaimer
The grant of this PSU Award under the Plan is exempt from the requirement to publish a prospectus under the EU Prospectus Regulation.
FRANCE
Notifications
French Securities Disclaimer
The grant of this PSU Award is exempt or excluded from the requirement to publish a prospectus under the EU Prospectus Regulation.
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Non-Qualification of Award
This PSU Award is not intended to be tax qualified under French tax laws including, without limitation, under Articles L. 225-197-1 to L. 225-197-6 of the French Commercial Code.
Terms and Conditions
Language Consent
In accepting the grant of this PSU Award and this Agreement which provides for the terms and conditions of this PSU Award, Grantee confirms that he or she has read and understood the documents relating to the PSU Award (the Plan and this Agreement), which were provided in the English language. Grantee accepts the terms of these documents accordingly.
Consentement Relatif à la Langue Utilisée
En acceptant cette attribution gratuite d’actions et ce contrat qui contient les termes et conditions de cette attribution gratuite d’actions, l’employé confirme ainsi avoir lu et compris les documents relatifs à cette attribution (le Plan et le Contrat d’Attribution) qui lui ont été communiqués en langue anglaise. L’employé en accepte les termes en connaissance de cause.
GERMANY
Notifications
German Securities Disclaimer
The grant of this PSU Award is exempt or excluded from the requirement to publish a prospectus under the EU Prospectus Regulation.
Exchange Control Information
If Grantee remits proceeds in excess of certain designated amounts (currently EUR 12,500) out of or into Germany, such cross-border payment must be reported monthly to the State Central Bank. In the event that Grantee makes or receives a payment in excess of such amounts, Grantee is responsible for obtaining the appropriate form from a German bank and complying with applicable reporting requirements. Grantee is encouraged to consult his or her personal advisor for more details regarding these requirements.
IRELAND
Notifications
Irish Securities Disclaimer
The grant of this PSU Award is exempt or excluded from the requirement to publish a prospectus under the EU Prospectus Regulation.
ITALY
Terms and Conditions
This provision supplements Section 14 (Data Privacy) of the Agreement:
13
Grantee understands that his or her employer (the “Employer”) and/or the Company may hold certain personal information about him or her, including, but not limited to, Grantee’s name, home address and telephone number, date of birth, social security number (or any other social or national identification number), salary, nationality, job title, number of shares held and the details of all equity awards granted or any other entitlement to shares awarded, cancelled, exercised, vested, unvested or outstanding (the “Data”) for the purpose of implementing, administering and managing his or her participation in the Plan. Grantee is aware that providing the Company with his or her Data is necessary for the performance of this Agreement and that his or her refusal to provide such Data would make it impossible for the Company to perform its contractual obligations and may affect Grantee’s ability to participate in the Plan.
The Controller of personal data processing is at 10 Finderne Ave, Building 10
Bridgewater, NJ 08807-3365. Grantee understands that the Data may be transferred to the Company or any of its subsidiaries, or to any third parties assisting in the implementation, administration and management of the Plan, including any transfer required to a broker or other third party with whom shares acquired pursuant to the vesting of this PSU Award or cash from the sale of such shares may be deposited. Furthermore, the recipients that may receive, possess, use, retain and transfer such Data for the above mentioned purposes may be located in Italy or elsewhere, including outside of the European Union and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than Grantee’s country. The processing activity, including the transfer of Grantee’s personal data abroad, outside of the European Union, as herein specified and pursuant to applicable laws and regulations, does not require Grantee’s consent thereto as the processing is necessary for the performance of contractual obligations related to the implementation, administration and management of the Plan. Grantee understands that Data processing relating to the purposes above specified shall take place under automated or non-automated conditions, anonymously when possible, that comply with the purposes for which Data is collected and with confidentiality and security provisions as set forth by applicable laws and regulations, with specific reference to D.lgs. 196/2003.
Bridgewater, NJ 08807-3365. Grantee understands that the Data may be transferred to the Company or any of its subsidiaries, or to any third parties assisting in the implementation, administration and management of the Plan, including any transfer required to a broker or other third party with whom shares acquired pursuant to the vesting of this PSU Award or cash from the sale of such shares may be deposited. Furthermore, the recipients that may receive, possess, use, retain and transfer such Data for the above mentioned purposes may be located in Italy or elsewhere, including outside of the European Union and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than Grantee’s country. The processing activity, including the transfer of Grantee’s personal data abroad, outside of the European Union, as herein specified and pursuant to applicable laws and regulations, does not require Grantee’s consent thereto as the processing is necessary for the performance of contractual obligations related to the implementation, administration and management of the Plan. Grantee understands that Data processing relating to the purposes above specified shall take place under automated or non-automated conditions, anonymously when possible, that comply with the purposes for which Data is collected and with confidentiality and security provisions as set forth by applicable laws and regulations, with specific reference to D.lgs. 196/2003.
Grantee understands that Data will be held only as long as is required by law or as necessary to implement, administer and manage Grantee’s participation in the Plan. Grantee understands that pursuant to art. 7 of D.Igs 196/2003, he or she has the right, including but not limited to, access, delete, update, request the rectification of Grantee’s Data and cease, for legitimate reasons, the Data processing. Furthermore, Grantee is aware that his or her Data will not be used for direct marketing purposes. In addition, the Data provided can be reviewed and questions or complaints can be addressed by contacting a local representative.
Notifications
Exchange Control Information
Grantee is required to report in his or her annual tax return: (a) any transfers of cash or shares to or from Italy exceeding a certain threshold (currently €1,000 or the equivalent amount in U.S. dollars); and (b) any foreign investments or investments (including proceeds from the sale of shares acquired under the Plan) held outside of Italy exceeding a certain threshold (currently €1,000 or the equivalent amount in U.S. dollars), if the investment may give rise to income in Italy. Grantee is generally exempt from the formalities in (a) if the investments are made through an authorized broker resident in Italy, as the broker will comply with the reporting obligation on Grantee’s behalf.
Italian Securities Disclaimer
14
The grant of this PSU Award is exempt from the requirement to publish a prospectus under the EU Prospectus Regulation.
NETHERLANDS
Dutch Securities Disclaimer
The grant of this PSU Award is exempt or excluded from the requirement to publish a prospectus under the EU Prospectus Regulation.
SWITZERLAND
Notifications
Securities Law Notification
The grant of this PSU Award is considered a private offering and therefore is not subject to registration in Switzerland.
UNITED KINGDOM
Notifications
UK Securities Notice and Disclaimer
This Agreement is not an approved prospectus for the purposes of section 85(1) of the Financial Services and Markets Act 2000 (“FSMA”) and no offer of transferable securities to the public (for the purposes of section 102B of FSMA) is being made in connection with the Plan. The Plan and this PSU Award are exclusively available in the UK to bona fide employees and former employees of the Company or its subsidiaries or affiliates.
15
EXHIBIT 31.1
Section 302 Certification
I, William H. Lewis, Chief Executive Officer of Insmed Incorporated, certify that:
(1) I have reviewed this quarterly report on Form 10-Q of Insmed Incorporated;
(2) Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
(3) Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
(4) The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
(5) The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: August 3, 2023
| /s/ William H. Lewis | ||
| William H. Lewis | ||
| Chair and Chief Executive Officer | ||
| (Principal Executive Officer) | ||
EXHIBIT 31.2
Section 302 Certification
I, Sara Bonstein, Chief Financial Officer of Insmed Incorporated, certify that:
(1) I have reviewed this quarterly report on Form 10-Q of Insmed Incorporated;
(2) Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
(3) Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
(4) The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
(5) The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: August 3, 2023
| /s/ Sara Bonstein | ||
| Sara Bonstein | ||
| Chief Financial Officer | ||
| (Principal Financial and Accounting Officer) | ||
EXHIBIT 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2003
In connection with this Quarterly Report on Form 10-Q of Insmed Incorporated (the "Company") for the period ended June 30, 2023 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, William H. Lewis, Chief Executive Officer of the Company, certify, pursuant to 18 USC. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2003, that:
(1)the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2)the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ William H. Lewis | ||
| William H. Lewis | ||
| Chair and Chief Executive Officer | ||
| (Principal Executive Officer) | ||
August 3, 2023
This certification accompanies the Form 10-Q to which it relates, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of Insmed Incorporated under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of the Form 10-Q), irrespective of any general incorporation language contained in such filing.
EXHIBIT 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2003
In connection with this Quarterly Report on Form 10-Q of Insmed Incorporated (the "Company") for the period ended June 30, 2023 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Sara Bonstein, Chief Financial Officer of the Company, certify, pursuant to 18 USC. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2003, that:
(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ Sara Bonstein | ||
| Sara Bonstein | ||
| Chief Financial Officer | ||
| (Principal Financial and Accounting Officer) | ||
August 3, 2023
This certification accompanies the Form 10-Q to which it relates, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of Insmed Incorporated under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of the Form 10-Q), irrespective of any general incorporation language contained in such filing.