Item 1.01 Entry
into a Material Definitive Agreement.
On February 25, 2021, Insmed Incorporated (the “Company”) entered into a Sales Agreement (the “Agreement”) with SVB Leerink LLC, as agent (“SVB Leerink”),
under which the Company may offer and sell its common stock, par value $0.01 per share, from time to time having an aggregate offering price of up to $250,000,000 (the “Shares”) during the term of the Agreement through SVB Leerink, acting as agent.
The Company has filed a prospectus supplement relating to the offer and sale of the Shares pursuant to the Agreement. The Shares will be issued pursuant to the Company’s previously filed and effective Registration Statement on Form S-3 (File No.
333-238560), which was initially filed with the Securities and Exchange Commission (the “SEC”) and became automatically effective on May 21, 2020. The Company intends to use the net proceeds from the offering, if any, to fund activities related to
the commercialization and development of ARIKAYCE, further research and development of brensocatib, treprostinil palmitil inhalation powder or any of its product candidates, and for other general corporate purposes, including business expansion
activities.
The Company is not obligated to sell any Shares pursuant to the Agreement. Subject to the terms and conditions of the Agreement, SVB Leerink will use
commercially reasonable efforts, consistent with its normal trading and sales practices and applicable state and federal law, rules and regulations and the rules of The Nasdaq Global Select Market (“Nasdaq”), to sell Shares from time to time based
upon the Company’s instructions, including any price, time or size limits or other customary parameters or conditions the Company may impose.
Under the Agreement, SVB Leerink may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 of the
Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations thereunder, including, without limitation, sales made directly on or through Nasdaq, on or through any other existing trading market for the Shares or to or
through a market maker. If expressly authorized by the Company, SVB Leerink may also sell Shares in negotiated transactions.
The Agreement will terminate upon the earlier of (i) the issuance and sale of all of the Shares through SVB Leerink on the terms and subject to the conditions
set forth in the Agreement and (ii) termination of the Agreement as otherwise permitted thereby. The Agreement may be terminated at any time by either party upon ten days’ prior notice, or by SVB Leerink at any time in certain circumstances,
including the occurrence of a material adverse effect on the Company.
The Company agreed to pay SVB Leerink a commission equal to 3.0% of the gross proceeds from the sales of Shares pursuant to the Agreement. The Company made
certain customary representations, warranties and covenants in the Agreement concerning the Company, the Company’s registration statement and the offering of the Shares, and has agreed to indemnify SVB Leerink against certain liabilities, including
liabilities under the Securities Act.
The foregoing summary of the Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Agreement, a copy
of which is filed as Exhibit 10.1 hereto and incorporated herein by reference. The Agreement contains representations and warranties that the parties made to, and solely for the benefit of, the other in the context of all of the terms and conditions
of the Agreement and in the context of the specific relationship between the parties. The provisions of the Agreement, including the representations and warranties contained therein, are not for the benefit of any party other than the parties to the
Agreement and are not intended as a document for investors and the public to obtain factual information about the Company’s current state of affairs. Rather, investors and the public should look to other disclosures contained in the Company’s filings
with the SEC.
The legal opinion of Hunton Andrews Kurth LLP relating to the Shares is filed herewith as Exhibit 5.1.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy Shares, nor shall there be any sale of the Shares
in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.