Document

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: /$AwardsGranted$/
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 /$AwardsGranted$/ (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 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, the 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 the 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 the 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, the Grantee acknowledges and agrees as follows:


i.The 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 the 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 the Grantee any remaining funds from the sale of shares of Common Stock issuable pursuant to Vested PSUs referred to in clause (1).


ii.The 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 comply with the requirements of Rule 10b5-1(c) under the Act and will be interpreted to comply with the requirements of Rule 10b5-1(c) (the Grantee’s agreement to Sell to Cover and the provisions of this Section 10, collectively, the “10b5-1 Plan”). The Grantee acknowledges that by accepting this PSU Award, he or she is adopting the 10b5-1 Plan to permit the Grantee to satisfy Withholding Obligations. The 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.


iii.The 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 10b5-1 Plan and that the Agent may effect sales as provided in this 10b5-1 Plan in one or more sales and that the average price for executions resulting from bunched orders may be assigned to their account. The Grantee further acknowledges that he or she will be responsible for all brokerage fees and other costs of sale associated with this 10b5-1 Plan, and agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale. In addition, the Grantee acknowledges that it may not be possible to sell shares of Common Stock issuable pursuant to Vested PSUs as provided for in this 10b5-1 Plan due to (A) a legal or contractual restriction applicable to the Grantee or the Agent, (B) a market disruption, (C) a sale effected pursuant to this 10b5-1 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 10b5-1 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 








10b5-1 Plan, then the Grantee shall continue to be responsible for the timely payment to the Company of all Withholding Obligations.


iv.The Grantee acknowledges that regardless of any other term or condition of this 10b5-1 Plan, the Agent will not be liable to the 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.


v.The 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 10b5-1 Plan. The Agent is a third-party beneficiary of this Section 10 and the terms of this 10b5-1 Plan.


vi.The Grantee’s agreement to Sell to Cover and to enter into this 10b5-1 Plan is irrevocable. Upon acceptance of the PSU Award, Grantee shall have agreed to Sell to Cover and to enter into this 10b5-1 Plan, and Grantee acknowledges that they may not change this decision at any time in the future with respect to the PSU Award. This 10b5-1 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.the Grantee’s, Administrator’s or Agent’s reasonable determination that: (a) the 10b5-1 Plan does not comply with Rule 10b5-1 or other applicable securities laws or (b) the Grantee has not complied with the 10b5-1 Plan, Rule 10b5-1 or other 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 10b5-1 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 10b5-1 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 the Grantee’s death or legal incapacity from the Administrator or the Company; or


5.receipt by the Agent of written notice of termination from the 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 the 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 the Grantee’s tax liability.


11.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.


12.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. 


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 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.


14.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.


15.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.
By: /s/ /$ParticipantName$/
















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 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:
a.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;
b.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
c.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.
















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.