Exhibit 10.4

 

Option No.:      

 

TESARO, INC.

2012 OMNIBUS INCENTIVE PLAN

 

INCENTIVE STOCK OPTION AGREEMENT

 

TESARO, Inc., a Delaware corporation (the “Company”), hereby grants an option to purchase shares of its common stock, par value $0.0001 (the “Common Stock”) to the individual named below.  The terms and conditions of the option are set forth in this cover sheet and in the attachment (collectively, the “Agreement”) and in the Company’s 2012 Omnibus Incentive Plan (as it may be amended, the “Plan”).

 

Grant Date:                                              

 

Name of Participant:                                              

 

Participant’s Employee Identification Number:             -        -

 

Number of Shares of Common Stock Covered by Option:                                              

 

Option Price per Share of Common Stock:  U.S. $          .       (At least 100% of Fair Market Value)

 

Vesting Schedule:  1/4th on                                              (the “Vesting Start Date”) and 1/36th of the remaining unvested portion of the award on each monthly anniversary of the Vesting Start Date thereafter.

 

By signing this cover sheet, you agree to all of the terms and conditions described in this Agreement and in the Plan, a copy of which is also attached.  You acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this Agreement should appear to be inconsistent with the Plan.  Certain capitalized terms used in this Agreement are defined in the Plan, and have the meaning set forth in the Plan.

 

 

	
Participant:
    	
 
    	
 
    
	
 
    	
(Signature)
    	
 
    
	
 
    	
 
    	
 
    
	
Company:
    	
 
    	
 
    
	
 
    	
(Signature)
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    	
 
    
				


 

Attachment

 

This is not a stock certificate or a negotiable instrument

 











 

	
Incentive   Stock Option
    	
 
    	
This   option is intended to be an incentive stock option under Section 422 of   the Internal Revenue Code and will be interpreted accordingly. If you cease   to be an employee of the Company, its parent or a subsidiary (“Employee”) but   continue to provide Service, this option will be deemed a nonstatutory stock   option three months after you cease to be an Employee. In addition, to the   extent that all or part of this option exceeds the $100,000 rule of   section 422(d) of the Internal Revenue Code, this option or the lesser   excess part will be deemed to be a nonstatutory stock option.
    
	
 
    	
 
    	
 
    
	
Vesting
    	
 
    	
This   option is only exercisable before it expires and then only with respect to   the vested portion of the option. Subject to the preceding sentence, you may   exercise this option, in whole or in part, to purchase a whole number of   vested shares, unless the number of shares purchased is the total number   available for purchase under the option, by following the procedures set   forth in the Plan and below in this Agreement.

 

Your   right to purchase shares of Common Stock under this option vests as set forth   in the Vesting Schedule shown on the cover sheet, provided you then continue   in Service. You cannot vest in more than the number of shares covered by this   option. Except as otherwise provided in an employment, separation or other   similar agreement between you and the Company, no additional shares of Common   Stock will vest after your Service has terminated for any reason.
    
	
 
    	
 
    	
 
    
	
Term
    	
 
    	
Your   option will expire in any event at the close of business at Company   headquarters on the day before the tenth anniversary of the Grant Date, as   shown on the cover sheet. Your option will expire earlier (but never later)   if your Service terminates, as described below.
    
	
 
    	
 
    	
 
    
	
Regular   Termination
    	
 
    	
If   your Service terminates for any reason, other than death, Disability or   Cause, then your option will expire at the close of business at Company   headquarters on the 90th day after your termination date.
    
	
 
    	
 
    	
 
    
	
Termination   for Cause
    	
 
    	
If   your Service is terminated for Cause, then you shall immediately forfeit all   rights to your option and the option shall immediately expire.
    


 

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Death
    	
 
    	
If   your Service terminates because of your death, then your option will expire   at the close of business at Company headquarters on the date twelve (12)   months after the date of death. During that twelve month period, your estate   or heirs may exercise the vested portion of your option.

 

In   addition, if you die during the 90-day period described in connection with a   regular termination (i.e., a termination of your Service not on account of   your death, Disability or Cause), and a vested portion of your option has not   yet been exercised, then your option will instead expire on the date twelve   (12) months after your termination date. In such a case, during the period   following your death up to the date twelve (12) months after your termination   date, your estate or heirs may exercise the vested portion of your option.
    
	
 
    	
 
    	
 
    
	
Disability
    	
 
    	
If   your Service terminates because of your Disability, then your option will   expire at the close of business at Company headquarters on the date twelve   (12) months after your termination date.
    
	
 
    	
 
    	
 
    
	
Leaves   of Absence
    	
 
    	
For   purposes of this option, your Service does not terminate when you go on a bona fide employee leave of absence that was approved by   the Company in writing, if the terms of the leave provide for continued   Service crediting, or when continued Service crediting is required by   applicable law. However, your Service will be treated as terminating 90 days   after you went on employee leave, unless your right to return to active work   is guaranteed by law or by a contract. Your Service terminates in any event   when the approved leave ends unless you immediately return to active employee   work.

 

The   Company determines, in its sole discretion, which leaves count for this   purpose, and when your Service terminates for all purposes under the Plan.
    
	
 
    	
 
    	
 
    
	
Notice   of Exercise
    	
 
    	
When   you wish to exercise this option, you must notify the Company by filing the   proper “Notice of Exercise” form at the address given on the form. Your   notice must specify how many shares you wish to purchase. Your notice must   also specify how your shares of Common Stock should be registered (in your   name only or in your and your spouse’s names as joint tenants with right of   survivorship).

 

If   someone else wants to exercise this option after your death, that person must   prove to the Company’s satisfaction that he or she is entitled to do so.
    
	
 
    	
 
    	
 
    
	
Form of   Payment
    	
 
    	
When   you submit your notice of exercise, you must include payment of the option   price for the shares you are purchasing. 
    


 

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Payment   may be made in one (or a combination) of the following forms:

 

By   check payable to the order of the Company.

 

To   the extent a public market for the Common Stock exists and to the extent the   Company has established a broker assisted cashless exercise program, by   delivery (on a form prescribed by the Company) of an irrevocable direction to   a licensed securities broker acceptable to the Company to sell Common Stock   and to deliver all or part of the sale proceeds to the Company in payment of   the aggregate option price and any withholding taxes.

 

By   delivery of shares of Common Stock owned by you valued at Fair Market Value.

 

By   delivery of shares of Common Stock otherwise issuable to you upon exercise of   this option, valued at Fair Market Value.
    
	
 
    	
 
    	
 
    
	
Withholding   Taxes
    	
 
    	
You   will not be allowed to exercise this option unless you make acceptable   arrangements to pay any withholding or other taxes that may be due as a   result of the option exercise or sale of Common Stock acquired under this   option. In the event that the Company determines that any federal, state,   local or foreign tax or withholding payment is required relating to the   exercise or sale of shares arising from this grant, the Company shall have   the right to require such payments from you, or withhold such amounts from   other payments due to you from the Company or any Subsidiary. You may elect   to satisfy this withholding obligation, in whole or in part, by causing the   Company to withhold shares of Common Stock otherwise issuable to you or by   delivering to the Company shares of Common Stock. The shares of Common Stock   so delivered or withheld must have an aggregate Fair Market Value equal to   the withholding obligation and may not be subject to any repurchase,   forfeiture, unfulfilled vesting, or other similar requirements.
    
	
 
    	
 
    	
 
    
	
Transfer   of Option
    	
 
    	
During   your lifetime, only you (or, in the event of your legal incapacity or   incompetency, your guardian or legal representative) may exercise the option.   You cannot transfer or assign this option. For instance, you may not sell   this option or use it as security for a loan. If you attempt to do any of   these things, this option will immediately become invalid. You may, however,   dispose of this option in your will or it may be transferred upon your death   by the laws of descent and distribution.

 

Regardless   of any marital property settlement agreement, the Company is not obligated to   honor a notice of exercise from your 
    


 

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spouse,   nor is the Company obligated to recognize your spouse’s interest in your   option in any other way.
    
	
 
    	
 
    	
 
    
	
Retention   Rights
    	
 
    	
Neither   your option nor this Agreement give you the right to be retained or employed   by the Company (or any of its Subsidiaries) in any capacity. The Company (and   any Subsidiary) reserve the right to terminate your Service at any time and   for any reason.
    
	
 
    	
 
    	
 
    
	
Shareholder   Rights
    	
 
    	
You,   or your estate or heirs, have no rights as a shareholder of the Company until   a certificate for your option’s shares has been issued (or an appropriate   book entry has been made). No adjustments are made for dividends or other   rights if the applicable record date occurs before your stock certificate is   issued (or an appropriate book entry has been made).
    
	
 
    	
 
    	
 
    
	
Forfeiture   of Rights
    	
 
    	
If   you should take actions in competition with the Company, the Company shall   have the right to cause a forfeiture of your rights, including, but not   limited to, the right to cause: (i) a forfeiture of any outstanding   option, and (ii) with respect to the period commencing twelve (12)   months prior to your termination of Service with the Company (A) a   forfeiture of any gain recognized by you upon the exercise of an option or   (B) a forfeiture of any Common Stock acquired by you upon the exercise   of an option (but the Company will pay you the option price without   interest).

 

Unless   otherwise specified in an employment or other agreement between the Company   and you, you take actions in competition with the Company if you directly or   indirectly, own, manage, operate, join or control, or participate in the   ownership, management, operation or control of, or are a proprietor,   director, officer, stockholder, member, partner or an employee or agent of,   or a consultant to any business, firm, corporation, partnership or other   entity which competes with any business in which the Company or any of its   Subsidiaries is engaged during your employment or other relationship with the   Company or its Subsidiaries or at the time of your termination of Service.

 

If   it is ever determined by the Board that your actions have constituted   wrongdoing that contributed to any material misstatement or omission from any   report or statement filed by the Company with the U.S. Securities and   Exchange Commission, gross misconduct, breach of fiduciary duty to the   Company, or fraud, then the options shall be immediately forfeited; provided,   however, that if the option was exercised within two years prior to the Board   of Directors determination, you shall be required to pay to the Company an   amount equal to the aggregate value of the shares acquired upon such exercise   at the date of the Board 
    


 

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determination.
    
	
 
    	
 
    	
 
    
	
Adjustments
    	
 
    	
In   the event of a stock split, reverse stock split, stock dividend,   recapitalization, combination or reclassification of shares, spin-off, or   other similar change in capitalization or event, the number of shares covered   by this option and the option price per share shall be adjusted pursuant to   the Plan. Your option shall be subject to the terms of the agreement of   merger, liquidation or reorganization in the event the Company is subject to   such corporate activity.
    
	
 
    	
 
    	
 
    
	
Applicable   Law
    	
 
    	
This   Agreement will be interpreted and enforced under the laws of Delaware other   than any conflicts or choice of law rule or principle that might   otherwise refer construction or interpretation of this Agreement to the   substantive law of another jurisdiction.
    
	
 
    	
 
    	
 
    
	
The   Plan
    	
 
    	
The   text of the Plan is incorporated in this Agreement by reference.

 

This   Agreement and the Plan constitute the entire understanding between you and   the Company regarding this grant of options. Any prior agreements,   commitments or negotiations concerning this grant are superseded.
    
	
 
    	
 
    	
 
    
	
Data   Privacy
    	
 
    	
In   order to administer the Plan, the Company may process personal data about   you. Such data includes, but is not limited to the information provided in   this Agreement and any changes thereto, other appropriate personal and   financial data about you such as home address and business addresses and   other contact information, payroll information and any other information that   might be deemed appropriate by the Company to facilitate the administration   of the Plan.

 

By   accepting this option, you give explicit consent to the Company to process   any such personal data. You also give explicit consent to the Company to   transfer any such personal data outside the country in which you work or are   employed, including, with respect to non-U.S. resident grantees, to the   United States, to transferees who shall include the Company and other persons   who are designated by the Company to administer the Plan.
    
	
 
    	
 
    	
 
    
	
Consent   to Electronic Delivery
    	
 
    	
The   Company may choose to deliver certain statutory materials relating to the   Plan in electronic form. By accepting this grant you agree that the Company   may deliver the Plan prospectus and the Company’s annual report to you in an   electronic format. If at any time you would prefer to receive paper copies of   these documents, as you are entitled to, the Company would be pleased to   provide copies. Please contact  the   Company’s Secretary to request paper copies of these documents.
    


 

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Other   Agreements
    	
 
    	
You   agree, as a condition of the grant of this option, that in connection with   the exercise of the option, you will execute such additional documents and   agreements as the Company may require.
    
	
 
    	
 
    	
 
    
	
Certain   Dispositions
    	
 
    	
If   you sell or otherwise dispose of Common Stock acquired pursuant to the   exercise of this option sooner than the one year anniversary of the date you   acquired the Common Stock, then you agree to notify the Company in writing of   the date of sale or disposition, the number of share of Common Stock sold or   disposed of and the sale price per share within 30 days of such sale or   disposition.
    
	
 
    	
 
    	
 
    
	
Code   Section 409A
    	
 
    	
It   is intended that this award comply with Section 409A of the Code   (“Section 409A”) or an exemption to Section 409A. To the extent   that the Company determines that the Participant would be subject to the   additional 20% tax imposed on certain nonqualified deferred compensation   plans pursuant to Section 409A as a result of any provision of any this   Agreement, such provision shall be deemed amended to the minimum extent   necessary to avoid application of such additional tax. The nature of any such   amendment shall be determined by the Company.
    


 

By signing the cover sheet of this Agreement, you agree to all of the terms and
 conditions described above and in the Plan.

 

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