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

 

27-2249687

(State or other jurisdiction of
incorporation or organization)

 

(IRS employer identification
number)

 

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

 

Accelerated filer o

 

 

 

Non-accelerated filer o

 

(Do not check if a smaller reporting company)

Smaller reporting company o

Emerging growth company o

 

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
To Be Registered

 

Amount
To Be
Registered (#) (1)

 

Proposed Maximum
Offering Price
Per Share ($)

 

Proposed Maximum
Aggregate
Offering Price ($)

 

Amount of
Registration
Fee ($)

 

Common stock, $0.0001 par value per share

 

275,000

 

$

44.48

(2)

$

12,232,000

(2)

$

1,522.89

 

(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 registrant’s 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 registrant’s 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 Registrant’s 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 corporation’s 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 corporation’s 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 director’s 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.

 

1



 

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.

 

2



 

EXHIBIT INDEX

 

Exhibit
No.

 

Exhibit

 

 

 

4.1

 

Specimen common stock certificate for TESARO Inc.’s common stock (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1/A filed on June 19, 2012 (File No. 333- 180309)).

 

 

 

5.1

 

Opinion of Hogan Lovells US LLP as to the validity of the securities registered hereunder.

 

 

 

23.1

 

Consent of Ernst & Young LLP.

 

 

 

23.2

 

Consent of Hogan Lovells US LLP (included in Exhibit 5.1).

 

 

 

24.1

 

Power of Attorney

 

 

 

99.1

 

TESARO, Inc. 2012 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.3 to the Registrant’s Registration Statement on Form S-1/A filed on June 19, 2012 (File No. 333- 180309)).

 

 

 

99.2

 

Amendment to the TESARO, Inc. 2012 Employee Stock Purchase Plan (incorporated by reference to Appendix B to the Registrant’s Definitive Proxy Statement on Schedule 14A filed on April 6, 2018 (File No. 001-35587)).

 

3



 

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.

 

 

TESARO, Inc.

 

 

 

 

By:

/s/ Leon O. Moulder, Jr.

 

 

Leon O. Moulder, Jr.

 

 

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

 

Title

 

Date

 

 

 

 

 

/s/ Leon O. Moulder, Jr.

 

 

 

 

Leon O. Moulder, Jr.

 

Chief Executive Officer and Director
(Principal Executive Officer)

 

June 5, 2018

 

 

 

 

 

*

 

 

 

 

Mary Lynne Hedley, Ph.D.

 

President, Chief Operating Officer and Director

 

June 5, 2018

 

 

 

 

 

*

 

 

 

 

Timothy R. Pearson

 

Executive Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)

 

June 5, 2018

 

 

 

 

 

*

 

 

 

 

David M. Mott

 

Chairman of the Board of Directors

 

June 5, 2018

 

 

 

 

 

*

 

 

 

 

Lawrence M. Alleva

 

Director

 

June 5, 2018

 

 

 

 

 

*

 

 

 

 

James O. Armitage, M.D.

 

Director

 

June 5, 2018

 

 

 

 

 

*

 

 

 

 

Earl M. (Duke) Collier, Jr.

 

Director

 

June 5, 2018

 

 

 

 

 

*

 

 

 

 

Garry A. Nicholson

 

Director

 

June 5, 2018

 

 

 

 

 

*

 

 

 

 

Kavita Patel, M.D.

 

Director

 

June 5, 2018

 

 

 

 

 

*

 

 

 

 

Beth Seidenberg, M.D.

 

Director

 

June 5, 2018

 

 

 

 

 

*

 

 

 

 

Pascale Witz

 

Director

 

June 5, 2018

 

 

 

 

 

* By:

/s/ Joseph L. Farmer

 

 

Joseph L. Farmer, Attorney in Fact

 

4


Exhibit 5.1

 

Hogan Lovells US LLP
Harbor East
100 International Drive
Suite 2000
Baltimore, MD 21202
T +1 410 659 2700
F +1 410 659 2701
www.hoganlovells.com

 

June 5, 2018

 

Board of Directors

TESARO, Inc.

1000 Winter Street

Waltham, MA 02451

 

Ladies and Gentlemen:

 

We are acting as counsel to TESARO, Inc., a Delaware corporation (the “Company”), in connection with its registration statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), relating to the proposed offering of up to 275,000 shares of the common stock, par value $0.0001 per share, of the Company (the “Shares”), all of which shares are issuable pursuant to the TESARO, Inc. 2012 Employee Stock Purchase Plan, as amended (the “Plan”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.

 

For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including pdfs). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.

 

This opinion letter is based as to matters of law solely on the Delaware General Corporation Law, as amended. We express no opinion herein as to any other statutes, rules or regulations.

 

Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement, (ii) issuance of the Shares pursuant to the terms of the Plan, and (iii) receipt by the Company of the consideration for the Shares specified in the applicable resolutions of the Board of Directors and in the Plan, the Shares will be validly issued, fully paid, and nonassessable.

 

Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. “Hogan Lovells” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in:  Alicante   Amsterdam   Baltimore   Beijing   Brussels   Caracas   Colorado Springs   Denver   Dubai   Dusseldorf   Frankfurt   Hamburg   Hanoi   Ho Chi Minh City   Hong Kong   Houston   Johannesburg   London   Los Angeles   Luxembourg   Madrid   Mexico City   Miami   Milan   Monterrey   Moscow   Munich   New York   Northern Virginia   Paris   Perth   Philadelphia   Rio de Janeiro   Rome   San Francisco   São Paulo   Shanghai   Silicon Valley   Singapore   Sydney   Tokyo   Ulaanbaatar   Warsaw   Washington DC   Associated offices: Budapest   Jakarta   Jeddah   Riyadh   Zagreb. For more information see www.hoganlovells.com

 



 

This opinion letter has been prepared for use in connection with the Registration Statement. We assume no obligation to advise of any changes in the foregoing subsequent to the effective date of the Registration Statement.

 

We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Act.

 

Very truly yours,

 

 

 

/s/ HOGAN LOVELLS US LLP

 

 

 

HOGAN LOVELLS US LLP

 

 

2


Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2012 Employee Stock Purchase Plan of TESARO, Inc. of our reports dated February 28, 2018, with respect to the consolidated financial statements and schedule of TESARO, Inc. and the effectiveness of internal control over financial reporting of TESARO, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2017, filed with the Securities and Exchange Commission.

 

 

/s/ Ernst & Young LLP

 

Boston, Massachusetts

June 4, 2018

 


Exhibit 24.1

 

TESARO, INC.

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS that the undersigned Officers and Directors of TESARO, Inc., a Delaware corporation (the “Corporation”), hereby constitute and appoint Leon O. Moulder, Jr., Timothy R. Pearson and Joseph L. Farmer, and each of them, the true and lawful agents and attorneys-in-fact of the undersigned with full power and authority in said agents and attorneys-in-fact, and any one or more of them, to sign for the undersigned and in their respective names as Officers and as Directors of the Corporation one or more registration statements on Form S-8 (each, a “Registration Statement”) of the Corporation to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, and any amendment or amendments to such Registration Statements, relating to securities of the Corporation acquired under or to be offered under (a) the TESARO, Inc. 2012 Omnibus Incentive Plan, as amended, and (b) the TESARO, Inc. 2012 Employee Stock Purchase Plan, as amended, and the undersigned hereby ratify and confirm all acts taken by such agents and attorneys-in-fact, or any one or more of them, as herein authorized.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Leon O. Moulder, Jr.

 

 

 

 

Leon O. Moulder, Jr.

 

Chief Executive Officer and Director
(Principal Executive Officer)

 

May 31, 2018

 

 

 

 

 

/s/ Mary Lynne Hedley, Ph.D.

 

 

 

 

Mary Lynne Hedley, Ph.D.

 

President, Chief Operating Officer and Director

 

May 31, 2018

 

 

 

 

 

/s/ Timothy R. Pearson

 

 

 

 

Timothy R. Pearson

 

Executive Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)

 

May 31, 2018

 

 

 

 

 

/s/ David M. Mott

 

 

 

 

David M. Mott

 

Chairman of the Board of Directors

 

May 31, 2018

 

 

 

 

 

/s Lawrence M. Alleva

 

 

 

 

Lawrence M. Alleva

 

Director

 

May 31, 2018

 

 

 

 

 

/s/ James O. Armitage, M.D.

 

 

 

 

James O. Armitage, M.D.

 

Director

 

May 31, 2018

 

 

 

 

 

/s/ Earl M. (Duke) Collier, Jr.

 

 

 

 

Earl M. (Duke) Collier, Jr.

 

Director

 

May 31, 2018

 

 

 

 

 

/s/ Garry A. Nicholson

 

 

 

 

Garry A. Nicholson

 

Director

 

May 31, 2018

 

 

 

 

 

/s/ Kavita Patel, M.D.

 

 

 

 

Kavita Patel, M.D.

 

Director

 

May 31, 2018

 

 

 

 

 

/s/ Beth Seidenberg, M.D.

 

 

 

 

Beth Seidenberg, M.D.

 

Director

 

May 31, 2018

 

 

 

 

 

/s/ Pascale Witz

 

 

 

 

Pascale Witz

 

Director

 

May 31, 2018