SC TO-T/A

0001193125-19-010768.txt : 20190117 0001193125-19-010768.hdr.sgml : 20190117 20190116201738 ACCESSION NUMBER: 0001193125-19-010768 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20190117 DATE AS OF CHANGE: 20190116 GROUP MEMBERS: ADRIATIC ACQUISITION CORP GROUP MEMBERS: GLAXOSMITHKLINE LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TESARO, Inc. CENTRAL INDEX KEY: 0001491576 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 272249687 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-86904 FILM NUMBER: 19529968 BUSINESS ADDRESS: STREET 1: 1000 WINTER STREET, SUITE 3300 CITY: WALTHAM STATE: MA ZIP: 02451 BUSINESS PHONE: (339) 970-0900 MAIL ADDRESS: STREET 1: 1000 WINTER STREET, SUITE 3300 CITY: WALTHAM STATE: MA ZIP: 02451 FORMER COMPANY: FORMER CONFORMED NAME: Tesaro, Inc. DATE OF NAME CHANGE: 20100510 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GLAXOSMITHKLINE PLC CENTRAL INDEX KEY: 0001131399 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 000000000 STATE OF INCORPORATION: X0 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 980 GREAT WEST ROAD CITY: BRENTFORD MIDDLESEX STATE: X0 ZIP: TW8 9GS BUSINESS PHONE: 011442080475000 MAIL ADDRESS: STREET 1: 980 GREAT WEST ROAD CITY: BRENTFORD MIDDLESEX STATE: X0 ZIP: TW8 9GS SC TO-T/A 1 d690355dsctota.htm SC TO-T/A SC TO-T/A

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE TO/A

(Amendment No. 6)

Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)

of the Securities Exchange Act of 1934

TESARO, INC.

(Name of Subject Company (Issuer))

ADRIATIC ACQUISITION CORPORATION,

GLAXOSMITHKLINE LLC

and

GLAXOSMITHKLINE PLC

(Names of Filing Persons (Offerors))

Common Stock, par value $0.0001 per share

(Title of Class of Securities)

881569107

(CUSIP Number of Class of Securities)

Lisa DeMarco, Esq.

GlaxoSmithKline

1250 S Collegeville Road/ UP4110

Collegeville, Pennsylvania 19426-0989

Telephone: +1 (610) 917-5045

(Name, Address and Telephone Number of Person Authorized

to Receive Notices and Communications on Behalf of Filing Persons)

Copy to:

George A. Casey

George Karafotias

Derrick Lott

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

Telephone: +1 (212) 848-4000

Calculation of Filing Fee


Transaction Valuation*		Amount of Filing Fee**
$4,540,024,398.95		$550,250.96

Estimated for purposes of calculating the amount of the filing fee only, in accordance with Rule 0-11(d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Calculated by adding (a) 55,231,566 shares of common stock of TESARO, Inc. issued and outstanding, multiplied by $75.00, the per share tender offer price, (b) 6,473,806 shares of common stock subject to outstanding stock options with an exercise price less than $75.00 per share, multiplied by $37.124, which is the offer price of $75.00 per share minus the weighted average exercise price for such options of $37.876 per share, and (c) 2,097,645 shares of common stock subject to outstanding restricted stock units, multiplied by $75.00, the per share tender offer price, in each case as of December 10, 2018. The calculation of the filing fee is based on information provided by TESARO, Inc. as of December 10, 2018.

The filing fee was calculated in accordance with Rule 0-11 of the Exchange Act and Fee Rate Advisory #1 for fiscal year 2019, issued August 24, 2018, by multiplying the transaction valuation by 0.0001212.

☒

Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and date of its filing.


Amount Previously Paid: U.S. $550,250.96		Filing Party: GlaxoSmithKline plc, GlaxoSmithKline LLC and Adriatic Acquisition Corporation

Form or Registration No.: Schedule TO		Date Filed: December 14, 2018

☐	Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

Check the appropriate boxes below to designate any transactions to which the statement relates:

☒	third-party tender offer subject to Rule 14d-1.

☐	issuer tender offer subject to Rule 13e-4.

☐	going-private transaction subject to Rule 13e-3.

☐	amendment to Schedule 13D under Rule 13d-2.

Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐

If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:

☐	Rule 13e-4(i) (Cross-Border Issuer Tender Offer)

☐	Rule 14(d)-1(d) (Cross-Border Third-Party Tender Offer)

This Amendment No. 6 filed with the Securities and Exchange Commission on January 16, 2019, amends and supplements the Tender Offer Statement filed on Schedule TO (as amended or supplemented, the “Schedule TO”) with the Securities and Exchange Commission on December 14, 2018, by: (i) Adriatic Acquisition Corporation, a Delaware corporation (“Purchaser”) and a direct wholly-owned subsidiary of GlaxoSmithKline LLC, a limited liability company organized under the laws of Delaware (“GSK LLC”), which is an indirect wholly-owned subsidiary of GlaxoSmithKline plc, a public limited company organized under the laws of England and Wales (“Parent”), (ii) GSK LLC and (iii) Parent. The Schedule TO relates to the offer by Purchaser to purchase all of the issued and outstanding shares of common stock, par value $0.0001 per share (each, a “Share” and collectively, the “Shares”) of TESARO, Inc., a Delaware corporation (the “Company”), for $75.00 per Share, net to the holder in cash, without interest, subject to any withholding taxes required by applicable law, and on the terms and subject to the conditions set forth in the Offer to Purchase, dated December 14, 2018 (together with any amendments or supplements thereto, the “Offer to Purchase”) and in the accompanying Letter of Transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal,” and together with the Offer to Purchase, the “Offer”), copies of which are attached to the Schedule TO as Exhibits (a)(1)(a) and (a)(1)(b), respectively. The information set forth in the Offer to Purchase, including all schedules thereto, and the related Letter of Transmittal is incorporated herein by reference with respect to all of the applicable items in the Schedule TO, except that such information is hereby amended and supplemented to the extent provided herein.

This Amendment is being filed on behalf of Parent, GSK LLC and Purchaser. All capitalized terms used in this Amendment and not otherwise defined have the respective meanings ascribed to them in the Schedule TO. Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment. This Amendment should be read together with the Schedule TO.

Item 11. Additional Information.

The Offer to Purchase and Item 11 of the Schedule TO, to the extent Item 11 incorporates by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as set forth below:

The information set forth in Section 11. “The Merger Agreement; Other Agreements” is hereby amended and supplemented by adding a new heading and paragraphs at the end of such section to read as follows:

Retention Arrangements Following the Merger

GSK LLC has entered into retention agreements with each of Drs. Hedley and Huber and Mr. Bogle that, in each case, provide for a payment equal to the sum of: (i) 12 months of each executive’s base salary in effect for 2018, and (ii) 100% of the executive’s annual target bonus on each of the first and, other than in the case of Mr. Bogle, second anniversaries of the Effective Time, contingent upon the executives’ continued employment with the Surviving Corporation through each applicable payment date. Additionally, GSK LLC anticipates entering into a retention agreement with Mr. Orlando Oliveira with terms substantially similar to those with Drs. Hedley and Huber and Mr. Bogle.

The retention payments will also be made in the event of a termination of the executives’ employment by the Surviving Corporation without “cause” prior to the applicable payment date or, in the cases of Drs. Hedley and Huber, the Company’s decision not to renew the employment term beyond the first or second anniversary of the Effective Time. In the case of Mr. Bogle, a termination by him following the occurrence of a material breach by the Company or GSK LLC of any payment or other material term of his retention agreement, his current employment agreement or any other material agreement between him and the Company and/or GSK LLC (a “Modified Good Reason Event”), will also entitle him to his retention payments, provided that a written notice to the Company and/or GSK LLC was provided within thirty (30) days after the occurrence of the event giving rise to a Modified Good Reason Event, and the Company and/or GSK LLC failed to cure such event in all material respects within thirty (30) days following receipt of the notice (the “Modified Good Reason Event Requirement”). In the case of Dr. Hedley, a termination by her following the occurrence of a Modified Good Reason Event will entitle her to a portion of her retention payments, to the extent not previously paid, prorated for her actual period of service through the date of termination, provided that she satisfies the Modified Good Reason Event Requirement.

Dr. Hedley will also be entitled to a transaction bonus payable on the six-month anniversary of the Effective Time, contingent upon: (A) Dr. Hedley’s continued employment with the Surviving Corporation through the six-month anniversary of the Effective Time or (B) the prior termination of her employment by the Surviving

Corporation without “cause”. In the event that Dr. Hedley terminates her employment following the occurrence of a Modified Good Reason Event, she will be entitled to her transaction bonus, to the extent not previously paid, provided that she satisfies the Modified Good Reason Event Requirement. The aggregate amount of each executive’s retention payments and Dr. Hedley’s transaction bonus are set forth in the table below.

In connection with their acceptance of the retention package, the executives have agreed to continue to abide by the restrictive covenants contained in their current employment agreements and to waive any right to trigger severance on account of “Good Reason” (as defined in their current employment agreements) on account of changes to their duties and responsibilities that occur as a result of the consummation of the transactions contemplated by the Merger Agreement. If Dr. Huber chooses not to continue employment beyond the first or second anniversary of the Effective Time, he will be entitled to resign and receive severance, at the levels provided in his current employment agreement. Mr. Bogle will be entitled to receive severance, at the level provided in his current employment agreement, upon the 60th day following December 31, 2019, provided that he remains employed through December 31, 2019. The retention, transaction bonus and severance amounts for Drs. Hedley, Huber and Mr. Bogle are listed below.


Name of Executive Officer	Retention Package		Transaction Bonus Payment		Severance Payments		Total Retention Package
Mary Lynne Hedley, Ph.D.	$	2,079,000	$	1,400,000		—	$	3,479,000
Grant C. Bogle	$	660,000		—	$	796,250	$	1,456,250
Martin H. Huber, M.D.	$	1,500,000		—	$	906,500	$	2,406,500

The foregoing description of the retention agreements does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the retention agreements, which are attached as Exhibits (d)(8), (d)(9) and (d)(10) to the Schedule TO and are incorporated herein by reference.

The information set forth in Section 16. “Certain Legal Matters; Regulatory Approvals” is hereby amended and supplemented by adding the following paragraph as a new paragraph after the last paragraph under the heading “Foreign Approvals”:

On January 16, 2019, the FCO issued a clearance decision with respect to the Offer and the Merger, and the FCA provided a (declaratory) confirmation of clearance with respect to the Offer and the Merger. Accordingly, the portion of the Offer Conditions relating to approval by the FCO and the FCA of the transactions contemplated by the Merger Agreement has been satisfied.

SIGNATURE

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: January 16, 2019


ADRIATIC ACQUISITION CORPORATION

By:		/s/ William J. Mosher

Name: William J. Mosher Title: Vice President and Secretary



GLAXOSMITHKLINE LLC

By:		/s/ William J. Mosher

Name: William J. Mosher Title: Vice President and Secretary



GLAXOSMITHKLINE PLC

By:		/s/ Kevin Sin

Name: Kevin Sin Title: Authorized Representative

EXHIBIT INDEX

(a)(1)(a)

Offer to Purchase, dated December 14, 2018.*

(a)(1)(b)

Form of Letter of Transmittal.*

(a)(1)(c)

Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*

(a)(1)(d)

Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*

(a)(1)(e)

Summary Advertisement as published in The Wall Street Journal on December 14, 2018.*

(a)(1)(f)

Power of Attorney for Parent dated November 22, 2018.*

(a)(5)(a)

Joint Press Release issued by Parent and the Company on December 3, 2018, attached as Exhibit (a)(5)(a) to the Form SC TO-C filed by Parent with the Securities and Exchange Commission on December 4, 2018 (incorporated herein by reference).

(a)(5)(b)

E-mail, dated December 3, 2018, from Emma Walmsley, Parent’s Chief Executive Officer, to the Company employees, attached as Exhibit (a)(5)(b) to the Form SC TO-C filed by Parent with the Securities and Exchange Commission on December 4, 2018 (incorporated herein by reference).

(a)(5)(c)

Parent Newsflash to all Parent Pharma Employees from Hal Barron & Luke Miles on December 3, 2018, attached as Exhibit (a)(5)(c) to the Form SC TO-C filed by Parent with the Securities and Exchange Commission on December 4, 2018 (incorporated herein by reference).

(a)(5)(d)

Parent investor call slides, dated December 3, 2018, attached as Exhibit (a)(5)(d) to the Form SC TO-C filed by Parent with the Securities and Exchange Commission on December 4, 2018 (incorporated herein by reference).

(a)(5)(e)

Social media content issued by Parent on December 3, 2018, attached as Exhibit (a)(5)(e) to the Form SC TO-C filed by Parent with the Securities and Exchange Commission on December 4, 2018 (incorporated herein by reference).

(a)(5)(f)

Parent Analyst Call on December 3, 2018, attached as Exhibit (a)(5)(f) to the Schedule TO-C filed by Parent with the Securities and Exchange Commission on December 4, 2018 (incorporated herein by reference).

(a)(5)(g)

Questions and Answers, attached as Exhibit (a)(5)(g) to the Schedule TO-C filed by Parent with the Securities and Exchange Commission on December 4, 2018 (incorporated herein by reference).

(a)(5)(h)

Social media content by Parent on December 4, 2018, attached as Exhibit (a)(5)(h) to the Schedule TO-C filed by Parent with the Securities and Exchange Commission on December 4, 2018 (incorporated herein by reference).

(a)(5)(i)

Press release issued by Parent on December 14, 2018.*

(a)(5)(j)

Stock exchange announcement on the Regulatory News Service issued by Parent on January 15, 2019.*

(b)	Not applicable.

(d)(1)

Agreement and Plan of Merger, dated December 3, 2018, among Parent, Purchaser and the Company, attached as Exhibit 2.1 to the Form 8-K/A filed by the Company with the Securities and Exchange Commission on December 3, 2018 (incorporated herein by reference).

(d)(2)

Form of Tender and Support Agreement, dated December 3, 2018, among Parent, Purchaser and the stockholders of the Company party thereto, attached as Exhibit 99.1 to the Form 8-K filed by the Company with the Securities and Exchange Commission on December 3, 2018 (incorporated herein by reference).

(d)(3)

Mutual Non-Disclosure Agreement, dated August 8, 2018, between GSK LLC and the Company.*

(d)(4)

First Amendment to the Mutual Non-Disclosure Agreement, dated November 8, 2018, between GSK LLC and the Company.*

(d)(5)

3-WAY NON-DISCLOSURE AGREEMENT, dated November 15, 2018, among GSK LLC, the Company and Ajinomoto Althea, Inc. DBA Ajinomoto Bio-Pharma Services.*

(d)(6)

Letter agreement, dated November 23, 2018, between Parent and the Company.*

(d)(7)

Facilities Agreement, dated December 3, 2018, among Parent, Bank of America Merrill Lynch International Designated Activity Company and Bank of America, N.A.*

(d)(8)

Retention Letter by and between GSK LLC and Mr. Grant Bogle, dated as of January 16, 2019.

(d)(9)

Retention Letter by and between GSK LLC and Dr. Mary Lynne Hedley, Ph.D., dated as of January 16, 2019.

(d)(10)

Retention Letter by and between GSK LLC and Dr. Martin Huber, M.D., dated as of January 16, 2019.

(g)	Not applicable.

(h)	Not applicable.

*	Previously Filed

EX-99.(D)(8) 2 d690355dex99d8.htm EX-(D)(8) EX-(d)(8)

Exhibit (d)(8)

LOGO

January 16, 2019

Mr. Grant Bogle

Retention Letter Agreement

Dear Grant,

As you know, GlaxoSmithKline plc (“GSK”) has entered into that certain Agreement and Plan of Merger, dated as of December 3, 2018 (the “Merger Agreement”), among GSK, Adriatic Acquisition Corporation, an indirect wholly-owned subsidiary of GSK (“Purchaser”) and Tesaro, Inc. (“Tesaro”). Pursuant to the terms and conditions of the Merger Agreement, Purchaser has agreed to commence a cash tender offer to purchase all of the outstanding and issued shares of common stock of Tesaro (the “Transaction”).

We value your proven leadership with Tesaro and we are excited about the opportunity for you to become part of GSK to assist with the transition, commencing on the closing date of the Transaction (the “Closing Date”) and concluding on December 31, 2019 (the “Separation Date”), pursuant to the terms set forth in this letter agreement (this “Letter”). We are excited about the opportunities presented by the combination of our businesses and we look forward to you continuing with our team following the Closing Date.

The ongoing terms of your employment are agreed as follows:

Employment; Term. You agree to continue your employment through the Separation Date to help effect a successful integration and transition. GSK shall, and shall cause Tesaro to, honor the terms of your employment agreement with Tesaro, dated February 23, 2017 (the “Tesaro Agreement”), as modified in accordance with the terms of this Letter.

2.	Compensation.

Base Salary. Your annual base salary will be $455,000, payable pursuant to Tesaro’s regular payroll policy.

Target Bonus. You will be eligible for a target annual cash incentive compensation opportunity at least as favorable as that provided to you in the Tesaro Agreement (i.e., an annual target bonus of 50% of your annual base salary) that will allow you to participate in the success of Tesaro based on agreed upon milestones established by GSK.

Severance. Subject to your continued employment through the Separation Date (except as provided below) and your execution and non-revocation of a general release of claims in substantially the form attached hereto as Exhibit A (the “Release”), you will be eligible to receive the change in control severance payments and benefits provided in Section 7(b) of the Tesaro Agreement (the “Severance Payment”), with the cash amount payable pursuant to Section 7(b)(i) to be paid on the 60th day following the Separation Date.

Retention Payments. Subject to your continued employment through the Separation Date (except as provided below) and your execution and non-revocation of the Release, you will be eligible to receive a retention payment equal to the amount of $660,000, payable in a cash lump sum on the first anniversary of the Closing Date.

3.	Termination.

Early Termination without “Cause” or due to “Modified Good Reason Event”. In the event that your employment is involuntarily terminated by GSK prior to the Separation Date without “Cause” (as defined in the Tesaro Agreement), or by you following the occurrence of a Modified Good Reason Event, and subject to your execution and non-revocation of the Release, you will receive the payments described in Sections 2(c) and 2(d) of this Letter, on the regular payment schedules.

“Modified Good Reason Event” means the breach by Tesaro or GSK of any payment or other material term of this Letter, the Tesaro Agreement (as modified herein) or any other material agreement between you and Tesaro and/or GSK; provided that a “Modified Good Reason” shall not exist unless you have first provided written notice to Tesaro and/or GSK within thirty (30) days after the occurrence of the event giving rise to a “Modified Good Reason” and Tesaro and/or GSK has not cured such event in all material respects within thirty (30) days following receipt of such notice.

Termination by you for “Good Reason” under Tesaro Agreement. By accepting the arrangement described in this Letter, you will expressly agree to waive any right to trigger “Good Reason” as defined in the Tesaro Agreement on account of changes to your duties and responsibilities that occur at the Closing Date, and instead will become entitled to your Severance Payment as of the Separation Date, subject to your execution and non-revocation of the Release, to be paid in a single cash lump sum on the 60th day following the Separation Date.

Termination for “Cause” or by you for any reason other than a Modified Good Reason Event. In the event that your employment is terminated for “Cause” or you voluntarily resign for any reason other than following the occurrence of a Modified Good Reason Event prior to the Separation Date, including death or disability, you will forfeit the payments provided in Sections 2(c) and 2(d).

4.	Miscellaneous.

No Offset. To the extent that you are entitled to the retention payments under Section 2(d), those amounts will not be reduced by payments or other amounts due under the Tesaro Agreement.

Restrictive Covenants. In order to protect the legitimate interests of GSK and Tesaro, you agree to abide and continue to be bound by the provisions set forth in Section 7(e) of the Tesaro Agreement, which is hereby incorporated by reference and forms a part hereof.

Recoupment. Your retention payment will be subject to any applicable clawback or recoupment policy of GSK.

Section 280G. Section 7(f) of the Tesaro Agreement will apply to your retention and severance payments under Sections 2(c), 2(d) and 3.

Withholding. Tesaro will withhold from any compensation or benefits payable any federal, state and local income, employment or other similar taxes as may be required.

Occurrence of Closing. In the event that the Transactions contemplated by the Merger Agreement are abandoned or not consummated, this Letter shall be null and void and of no force and effect.

Please sign and return a copy of this Letter to GSK indicating your agreement to the terms set forth herein.

GSK looks forward to working with you.

Regards,


GlaxoSmithKline LLC						Understood, Accepted and Agreed:

/s/ William J. Mosher						/s/ Grant Bogle

By: William J. Mosher						Grant Bogle
Title: Vice President and Secretary						Date: January 16, 2019

EX-99.(D)(9) 3 d690355dex99d9.htm EX-(D)(9) EX-(d)(9)

Exhibit (d)(9)

LOGO

January 16, 2019

Dr. Mary Lynne Hedley

Retention Letter Agreement

Dear Mary Lynne:

We value your proven leadership with Tesaro and we are excited about the opportunity for you to become part of GSK. Therefore, in connection with the Transaction, we are pleased to continue your employment with Tesaro as President and Chief Operating Officer, commencing on the closing date of the Transaction (the “Closing Date”) pursuant to the terms set forth in this letter agreement (this “Letter”). We are excited about the opportunities presented by the combination of our businesses and we look forward to you continuing with our team following the Closing Date.

The ongoing terms of your employment are agreed as follows:

Employment; Term. You agree to continue your employment as President and Chief Operating Officer of Tesaro (or in such other role mutually agreed upon in writing between you and GSK) for twelve (12) months following the Closing Date (the “Term”); provided, however, that, on the first anniversary of the Closing Date, the Term shall automatically be extended for one (1) additional year (the “Extended Term”), unless either you or GSK provides written notice (“Notice”) to the other party no later than sixty (60) days prior to the expiration of the Term of the intent not to renew for the Extended Term. GSK shall, and shall cause Tesaro to, honor the terms of your employment agreement with Tesaro, dated February 23, 2017 (the “Tesaro Agreement”), as modified in accordance with the terms of this Letter through the end of the Term or the Extended Term, as the case may be; provided, however, that should you elect to continue your employment with Tesaro after the Extended Term, the Tesaro Agreement (as modified in accordance with the terms of this Letter) shall terminate without further force and effect and you shall be employed thereafter on terms and conditions no less favorable in all material regards than those applicable to similarly situated employees of GSK.

2.	Compensation.

Base Salary. Your annual base salary will be $652,000, payable pursuant to Tesaro’s regular payroll policy and subject to review in the ordinary course and potential upward adjustment.

Target Bonus. You will be eligible for a target annual cash incentive compensation opportunity at least as favorable as that provided to you in the Tesaro Agreement (i.e., an annual target bonus of 65% of your annual base salary) that will allow you to participate in the success of Tesaro based on agreed upon milestones established by GSK.

Transaction Bonus. You will be eligible to receive a one-time transaction bonus in the amount of $1,400,000 (the “Transaction Bonus”), which will be due and payable to you in a single cash lump sum on the six-month anniversary of the Closing Date, subject to (except as expressly provided in Section 3 below) your continued employment.

Retention Payments. You will be eligible to receive two retention payments, with each retention payment equal to the amount of $1,039,500 (collectively, the “Retention Payments”), which will be due and payable to you in a cash lump sum on each of the first and second anniversaries of the Closing Date, subject to (except as expressly provided in Section 3 below) your continued employment on the applicable anniversary of the Closing Date.

Long-Term Incentive Awards. You will be eligible to receive long-term incentive awards that will allow you to participate in our shared success, the terms and conditions of which will be communicated to you following the Closing Date.

3.	Termination.

Early Termination without “Cause” or Due to Non-Renewal. In the event that, prior to the second anniversary of the Closing Date: (i) your employment is involuntarily terminated without “Cause” (as defined in the Tesaro Agreement) or (ii) GSK provides Notice of its intent not to renew the Term or the Extended Term, as the case may be, at either the first or the second anniversary of the Closing Date and terminates your employment at that anniversary, you will receive, after the “Release Effective Date” (as defined in the Tesaro Agreement), the Transaction Bonus and the Retention Payments (in each case, to the extent not previously paid) on the date or dates such amounts would ordinarily have become payable.

Termination by you due to “Modified Good Reason Event”. In the event that, prior to the second anniversary of the Closing Date, you terminate your employment following the occurrence of a “Modified Good Reason Event” (as defined below), you will receive, after the “Release Effective Date” (as defined in the Tesaro Agreement), the Transaction Bonus (to the extent not previously paid) and a portion of the Retention Payments (to the extent not previously paid) prorated for your actual period of service through the date of termination, on the date or dates such amounts would ordinarily have become payable.

“Modified Good Reason Event” means the material breach by Tesaro or GSK of any payment or other material term of this Letter, the Tesaro Agreement (as modified herein) or any other material agreement between you and Tesaro and/or GSK; provided that a “Modified Good Reason Event” shall not exist unless you have first provided written notice to Tesaro and/or GSK within thirty (30) days after the occurrence of the event giving rise to a “Modified Good Reason Event” and Tesaro and/or GSK has not cured such event in all material respects within thirty (30) days following receipt of such notice.

Termination for “Cause” or by you for any reason. In the event that your employment is terminated for “Cause” or you resign for any reason, including death, disability, or for “Good Reason” pursuant to Section 6(g) of the Tesaro Agreement, you will forfeit any unpaid portion of the Retention Payments and, other than in the case of termination due to death or disability or for “Good Reason” pursuant to Section 6(g) of the Tesaro Agreement, any unpaid portion of the Transaction Bonus.

Ineligibility for Change in Control Severance Payment. By accepting the arrangement described in this Letter, you hereby waive any rights to the severance payments provided in Sections 6(b) and (c) of the Tesaro Agreement, and to any other severance payment from Tesaro or GSK.

4.	Miscellaneous.

At-Will Employment. This Letter is not a contract guaranteeing employment for any specific duration. You or GSK may terminate your employment relationship at any time for any reason with or without cause or notice. Nothing in this Letter is meant to alter the at-will status of your employment or to create a contract of employment with you for any reason or for any stated term.

Restrictive Covenants. In order to protect the legitimate interests of GSK and Tesaro, you agree to abide and continue to be bound by the provisions set forth in Section 6(e) of the Tesaro Agreement, which are hereby incorporated by reference and form a part hereof, and after the expiration of the Term and the Extended Term, as the case may be, you will be subject to the standard cooperation, confidentiality, non-disparagement and non-solicitation covenants of GSK.

Recoupment. The Retention Payments will be subject to any applicable clawback or recoupment policy of GSK.

Section 280G. Section 6(h) of the Tesaro Agreement will apply to the Transaction Bonus and the Retention Payments under Sections 2(c), 2(d) and 3.

Withholding. Tesaro will withhold from any compensation or benefits payable any federal, state and local income, employment or other similar taxes as may be required.

Occurrence of Closing. In the event that the Transactions contemplated by the Merger Agreement are abandoned or not consummated, this Letter shall be null and void and of no force and effect.

Please sign and return a copy of this Letter to GSK indicating your agreement to the terms set forth herein.

GSK looks forward to working with you.

Regards,


GlaxoSmithKline LLC		Understood, Accepted and Agreed:

/s/ William J. Mosher		/s/ Dr. Mary Lynne Hedley
By:	William J. Mosher		Dr. Mary Lynne Hedley
Title:	Vice President and Secretary		Date: January 16, 2019

EX-99.(D)(10) 4 d690355dex99d10.htm EX-(D)(10) EX-(d)(10)

Exhibit (d)(10)

LOGO

January 16, 2019

Mr. Martin Huber

Retention Letter

Dear Martin,

We value your proven leadership with Tesaro and we are excited about the opportunity for you to become part of GSK. Therefore, in connection with the Transaction, we are pleased to continue your employment with Tesaro as Chief Medical Officer, reporting to the President and Chief Operating Officer of Tesaro, commencing on the closing date of the Transaction (the “Closing Date”) pursuant to the terms set forth in this letter (this “Letter”). We are excited about the opportunities presented by the combination of our businesses and we look forward to you continuing with our team following the Closing Date.

The ongoing terms of your employment are agreed as follows:

Employment; Term. You agree to continue your employment for twelve (12) months following the Closing Date (the “Term”); provided, however, that, on the first anniversary of the Closing Date, the Term shall automatically be extended for one (1) additional year (the “Extended Term”), unless either you or GSK provides written notice (“Notice”) to the other party no later than sixty (60) days prior to the expiration of the Term of the intent not to renew for the Extended Term. GSK shall, or shall cause Tesaro to, honor the terms of your employment agreement with Tesaro, dated February 23, 2017 (the “Tesaro Agreement”), as modified in accordance with the terms of this Letter through the end of the Term or the Extended Term, as the case may be; provided, however, that should you elect to continue your employment with the Company after the Extended Term, the Tesaro Agreement shall terminate without further force and effect and you shall be employed thereafter on terms and conditions applicable to similarly situated employees of GSK.

2.	Compensation.

Base Salary. Your annual base salary will be $518,000, payable pursuant to Tesaro’s regular payroll policy.

Retention Payments. You will be eligible to receive two retention bonus payments, with each retention payment equal to the amount of $750,000, which will be due and payable to you in a cash lump sum on each of the first and second anniversaries of the Closing Date, subject to your continued employment on the applicable anniversary of the Closing Date (except as expressly provided below).

3.	Termination.

Early Termination without “Cause” or Due to Non-Renewal. In the event that, prior to the second anniversary of the Closing Date: (i) your employment is involuntarily terminated without “Cause” (as defined in the Tesaro Agreement) or (ii) the Company provides Notice of its intent not to renew the Term or the Extended Term, as the case may be, at either the first or the second anniversary of the Closing Date and terminates your employment at that anniversary, you will receive, after the “Release Effective Date” (as defined in the Tesaro Agreement): (i) the retention payments described in Section 2(c) of this Letter (to the extent not previously paid) on the first and second anniversaries of the Closing Date, as applicable, and (ii) the severance payments and benefits provided in Section 7(b) of the Tesaro Agreement (the “Severance Payment”).

Termination by you for “Good Reason” or Certain Other Resignations. By accepting the arrangement described in this Letter, you will expressly agree to waive any right to trigger “Good Reason” as defined in the Tesaro Agreement on account of changes to your duties and responsibilities that arise as a result of the consummation of the proposed Transaction and the fact that you are no longer an officer of a publicly-traded company. Thereafter during the Term or the Extended Term, as the case may be, “Good Reason” shall only occur as to part (i) of the definition in Section 7 of the Tesaro Agreement in the event of a material diminution of your duties and responsibilities in the aggregate, as established post-Closing. In the event that: (i) you resign from your employment for “Good Reason” (as defined in the Tesaro Agreement and as modified above) during the Term or the Extended Term, as the case may be, or (ii) provide Notice prior to the first or second anniversary of the Closing Date of your intent not to renew and terminate your employment as of such anniversary, you will receive, after the “Release Effective Date”, the Severance Payment.

Termination for “Cause” or by you for any reason. In the event that your employment is terminated for “Cause” or you resign for any reason, including death or disability, you will forfeit the retention payments provided in Section 2(c).

4.	Miscellaneous.

At-Will Employment. This Letter is not a contract guaranteeing employment for any specific duration. You or the Company may terminate your employment relationship at any time for any reason with or without cause or notice. Nothing in this Letter is meant to alter the at-will status of your employment or to create a contract of employment with you for any reason or for any stated term.

No Offset. To the extent that you are entitled to the retention payments under Section 2(c), those amounts will not be reduced by payments or other amounts due under the Tesaro Agreement.

Restrictive Covenants. In order to protect the legitimate interests of GSK and Tesaro, you agree to abide and continue to be bound by the provisions set forth in Section 7(e) and 8 of the Tesaro Agreement, which are hereby incorporated by reference and form a part hereof, and after the expiration of the Term and the Extended Term, as the case may be, you will be subject to the standard cooperation, confidentiality, non-disparagement and non-solicitation covenants of GSK.

Recoupment. Your retention payment will be subject to any applicable clawback or recoupment policy of GSK.

Section 280G. Section 7(f) of the Tesaro Agreement will apply to your retention and severance payments under Sections 2(c) and 3.

Withholding. Tesaro will withhold from any compensation or benefits payable any federal, state and local income, employment or other similar taxes as may be required.

Occurrence of Closing. In the event that the Transactions contemplated by the Merger Agreement are abandoned or not consummated, this Letter shall be null and void and of no force and effect.

Please sign and return a copy of this Letter to GSK indicating your agreement to the terms set forth herein.

GSK looks forward to working with you.

Regards,


GlaxoSmithKline LLC		Understood, Accepted and Agreed:

/s/ William J. Mosher		/s/ Martin Huber
By:	William J. Mosher	Martin Huber
Title:	Vice President and Secretary	Date: January 16, 2019

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