As filed with the Securities and Exchange Commission on June 5, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TESARO, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
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27-2249687 |
(State or other jurisdiction of |
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(IRS employer identification |
1000 Winter Street
Waltham, Massachusetts 02451
(339) 970-0900
(Address of principal executive offices)
TESARO, Inc. 2012 Employee Stock Purchase Plan
(Full title of the Plan)
Leon O. Moulder, Jr.
Chief Executive Officer
TESARO, Inc.
1000 Winter Street
Waltham, Massachusetts 02451
(339) 970-0900
(Name, address and telephone number of Agent for Service)
Copies to:
Asher M. Rubin
William I. Intner
Hogan Lovells US LLP
100 International Drive, Suite 2000
Baltimore, Maryland 21202
(410) 659-2700
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 definitions of large accelerated filer, accelerated filer, smaller reporting company, and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer x |
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Accelerated filer o |
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Non-accelerated filer o |
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(Do not check if a smaller reporting 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 7(a)(2)(B) of the Securities Act. o
CALCULATION OF REGISTRATION FEE
Title of Securities |
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Amount |
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Proposed Maximum |
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Proposed Maximum |
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Amount of |
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Common stock, $0.0001 par value per share |
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275,000 |
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$ |
44.48 |
(2) |
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12,232,000 |
(2) |
$ |
1,522.89 |
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(1) Pursuant to Rule 416 under the Securities Act, this Registration Statement shall also cover any additional shares of common stock that become issuable under the above-named plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration that results in an increase in the number of the registrants outstanding shares of common stock.
(2) Estimated pursuant to Rule 457(c) and Rule 457(h) solely for the purpose of calculating the registration fee. The proposed maximum aggregate offering price is based upon the average of the high and low sale prices of the registrants common stock as reported on The NASDAQ Global Market on June 4, 2018, of $44.48 per share.
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed by TESARO, Inc., a Delaware corporation, or the Registrant, to register 275,000 additional shares of the Registrants common stock, $0.0001 par value per share, or Common Stock, issuable under the TESARO, Inc. 2012 Employee Stock Purchase Plan, or the Plan. The Registrant previously registered 275,000 shares of Common Stock on a Registration Statement on Form S-8 (Registration No. 333-182915), or the Original S-8, all of which were shares issuable under the Plan.
As permitted by General Instruction E to Form S-8, this Registration Statement incorporates by reference the contents of the Original S-8, except to the extent supplemented, amended or superseded by the information set forth herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 6. Indemnification of Directors and Officers.
We are incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer, director, employee or agent of such corporation, or is or was serving at the request of such person as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporations best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporations best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred. Our certificate of incorporation and bylaws provide for the indemnification of our directors and officers to the fullest extent permitted under the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:
· transaction from which the director derives an improper personal benefit;
· act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
· unlawful payment of dividends or redemption of shares; or
· breach of a directors duty of loyalty to the corporation or its stockholders.
Our certificate of incorporation includes such a provision. Expenses incurred by any officer or director in defending any such action, suit or proceeding in advance of its final disposition shall be paid by us upon delivery to us of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified by us.
As permitted by the Delaware General Corporation Law, we have entered into indemnity agreements with each of our directors and executive officers. These agreements, among other things, require us to indemnify each director and officer to the fullest extent permitted by law and advance expenses to each indemnitee in connection with any proceeding in which indemnification is available.
We have an insurance policy covering our officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act of 1933, as amended, or the Securities Act, or otherwise.
Item 8. Exhibits.
The exhibits to this Registration Statement are listed on the exhibit index, which appears elsewhere in this Registration Statement and is incorporated herein by reference.
EXHIBIT INDEX
Exhibit |
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Exhibit |
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4.1 |
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5.1 |
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Opinion of Hogan Lovells US LLP as to the validity of the securities registered hereunder. |
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23.1 |
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23.2 |
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24.1 |
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99.1 |
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99.2 |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Waltham, Commonwealth of Massachusetts on June 5, 2018.
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TESARO, Inc. | |
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By: |
/s/ Leon O. Moulder, Jr. |
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Leon O. Moulder, Jr. |
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Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date | |
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/s/ Leon O. Moulder, Jr. |
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Leon O. Moulder, Jr. |
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Chief Executive Officer and Director |
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June 5, 2018 | |
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* |
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Mary Lynne Hedley, Ph.D. |
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President, Chief Operating Officer and Director |
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June 5, 2018 | |
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* |
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Timothy R. Pearson |
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Executive Vice President and Chief Financial Officer |
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June 5, 2018 | |
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* |
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David M. Mott |
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Chairman of the Board of Directors |
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June 5, 2018 | |
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* |
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Lawrence M. Alleva |
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Director |
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June 5, 2018 | |
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* |
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James O. Armitage, M.D. |
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Director |
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June 5, 2018 | |
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* |
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Earl M. (Duke) Collier, Jr. |
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Director |
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June 5, 2018 | |
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* |
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Garry A. Nicholson |
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Director |
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June 5, 2018 | |
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* |
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Kavita Patel, M.D. |
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Director |
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June 5, 2018 | |
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* |
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Beth Seidenberg, M.D. |
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Director |
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June 5, 2018 | |
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* |
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Pascale Witz |
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Director |
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June 5, 2018 | |
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* By: |
/s/ Joseph L. Farmer |
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Joseph L. Farmer, Attorney in Fact | ||||