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Registration No. 333-____________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
GLIATECH INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 34-1587242
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
23420 Commerce Park Road, Cleveland, Ohio 44122
(Address of Principal Executive Offices Including Zip Code)
AMENDED AND RESTATED 1989 STOCK OPTION PLAN
(Full Title of the Plan)
Thomas A. Oesterling, Ph.D.
President and Chief Executive Officer
Gliatech Inc.
23420 Commerce Park Road
Cleveland, Ohio 44122
(Name and Address of Agent For Service)
(216) 831-3200
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Title of Proposed Maxi- Proposed Maxi- Amount of
Securities to Amount to be mum Offering mum Aggregate Registration
be Registered Registered (1) Price Per Share (2) Offering Price (2) Fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 250,000 $9.75 $2,437,500 $738.64
par value per share
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<FN>
(1) Pursuant to Rule 416 of the Securities Act of 1933 (the "Securities
Act"), this Registration Statement also covers such additional Common
Stock, $0.01 par value per share (the "Common Stock"), as may become
issuable pursuant to the anti-dilution provisions of the Amended and
Restated 1989 Stock Option Plan (the "Plan").
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 of the General Rules and
Regulations under the Securities Act, on the basis of the average of
the high and low sale prices of such securities on the Nasdaq National
Market on May 15, 1997, within five business days prior to filing.
</TABLE>
Exhibit Index Appears on Page 2
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Incorporation by Reference
The contents of the Registration Statement on Form S-8 (Registration No.
333-00406) as filed with the Securities and Exchange Commission on January 18,
1996 to register shares of Common Stock, $0.01 par value per share (the "Common
Stock"), to be issued pursuant to the Amended and Restated 1989 Stock Option
Plan (the "Plan") of Gliatech Inc., a Delaware corporation (the "Company"), are
hereby incorporated herein by reference. This Registration Statement on Form S-8
is filed for the purpose of registering an additional 250,000 shares of Common
Stock under such Plan.
Item 8. Exhibits
Exhibit Exhibit
Number Description
------ -----------
4(a) Second Restated Certificate of Incorporation is hereby
incorporated by reference to Exhibit 4(a) of the Registration
Statement on Form S-8 (Reg. No. 333-00406).
4(b) Amended and Restated By-laws is hereby incorporated by
reference to Exhibit 4(b) of the Registration Statement on Form
S-8 (Reg. No. 333-00406).
4(c) Amended and Restated 1989 Stock Option Plan.
4(d) Seventh Amended and Restated Rights of First Refusal, Co-Sale
and Registration Rights Agreement is incorporated herein by
reference to Exhibit 4.8 of the Registration Statement on Form
S-1 (Reg. No. 33-96460).
5 Opinion of Jones, Day, Reavis & Pogue.
23(a) Consent of Ernst & Young LLP.
23(b) Opinion and Consent of Counsel -- See Exhibit 5.
24 Power of Attorney.
<PAGE> 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 Cleveland, State of Ohio, on this 19th day of May
1997.
GLIATECH INC.
By: /s/ Rodney E. Dausch
--------------------------------------
Rodney E. Dausch, Vice President,
Chief Financial Officer and Secretary
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* President, Chief Executive Officer, May 19, 1997
- ------------------------------------------ (Principal Executive Officer) and
Thomas O. Oesterling Ph.D. Director
/s/Rodney E. Dausch Vice President and Chief Financial May 19, 1997
- ------------------------------------------ Officer (Principal Financial Officer)
Rodney E. Dausch
* Chairman of the Board May 19, 1997
- ------------------------------------------
Robert P. Pinkas
* Director May 19, 1997
- ------------------------------------------
Allen H. Ford
* Director May 19, 1997
- ------------------------------------------
Ronald Henriksen
* Director May 19, 1997
- ------------------------------------------
Irving S. Shapiro
* Director May 19, 1997
- ------------------------------------------
John L. Ufheil
* Controller (Principal Accounting May 19, 1997
- ------------------------------------------ Officer)
Karen Diedrich
<FN>
* Rodney E. Dausch, the undersigned attorney-in-fact, by signing his
name hereto, does hereby sign and execute this Registration Statement on behalf
of the above indicated officers and directors thereof (constituting a majority
of the directors) pursuant to a power of attorney filed with the Securities and
Exchange Commission.
</TABLE>
May 19, 1997 By: /s/Rodney E. Dausch
-------------------------------------
Rodney E. Dausch, Vice President,
Chief Financial Officer and Secretary
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EXHIBIT INDEX
-------------
Exhibit Exhibit
Number Description
------ -----------
4(a) Second Restated Certificate of Incorporation is hereby
incorporated by reference to Exhibit 4(a) of the Registration
Statement on Form S-8 (Reg. No. 333-00406).
4(b) Amended and Restated By-laws is hereby incorporated by
reference to Exhibit 4(b) of the Registration Statement on Form
S-8 (Reg. No. 333-00406).
4(c) Amended and Restated 1989 Stock Option Plan.
4(d) Seventh Amended and Restated Rights of First Refusal, Co-Sale
and Registration Rights Agreement is incorporated herein by
reference to Exhibit 4.8 of the Registration Statement on Form
S-1 (Reg. No. 33-96460).
5 Opinion of Jones, Day, Reavis & Pogue.
23(a) Consent of Ernst & Young LLP.
23(b) Opinion and Consent of Counsel -- See Exhibit 5.
24 Power of Attorney.
<PAGE> 1
Exhibit 4(c)
GLIATECH INC.
Amended and Restated 1989 Stock Option Plan
(as amended)
SECTION 1. PURPOSE.
The purpose of the Gliatech Inc. 1989 Stock Option Plan (this
"Plan") is to provide incentives to eligible employees of Gliatech Inc., a
Delaware corporation (the "Company"), and its Subsidiaries (as hereinafter
defined), and other selected persons, by authorizing the grant to such eligible
employees and such other selected persons of options ("Options") to purchase
shares of Common Stock, $0.01 par value (the "Common Stock"), of the Company,
and thus to benefit the Company by giving such persons a greater personal
interest in the success of the Company and its Subsidiaries.
SECTION 2. ADMINISTRATION.
This Plan shall be administered by the Company's Board of
Directors or, if the Board of Directors so directs, by a committee consisting of
at least two directors, one of whom is not an employee of the Company or any
Subsidiary, appointed from time to time by the Board of Directors (the
"Committee") and none of whom is or has been eligible to participate in any
stock grant, purchase or option plan of the Company for at least one year prior
to serving on the Committee. For purposes of this Plan, the term "Committee"
shall mean those members of the Board of Directors or the Committee who are
serving as administrators of this Plan. The Committee shall act by a majority of
members at a meeting or by unanimous written consent. Options shall be granted
in accordance with and pursuant to determinations made by the Committee, all in
accordance with the provisions of this Plan, as to (a) the eligible persons to
whom Options may be granted, (b) the times at which such persons shall receive
Options, (c) the number of shares to be subject to each Option, the price
therefor to be paid upon the exercise of such Option and the other terms and
conditions on which such Option is granted and to which it is subject and (d)
whether a particular Option is to be designated as (i) an incentive stock option
within the meaning of Section 422(b) of the Internal Revenue Code of 1986, as
amended (the "Internal Revenue Code"), and the Income Tax Regulations thereunder
(the "Regulations"), as the same or any successor statute or regulations may at
the time be in effect (an "Incentive Stock Option"), or (ii) an Option that is
not an Incentive Stock Option (a "Non-Qualified Stock Option"). The Committee
may, from time to time, adopt such rules and regulations for carrying out this
Plan and its duties hereunder as it may deem proper and in the best interests of
the Company.
Options shall be evidenced by written instruments, executed by
the Company, containing such provisions not inconsistent with the terms of this
Plan as the Committee may determine. The interpretation and construction by the
Committee of the provisions of this Plan and the Options shall be final and
conclusive on all persons.
SECTION 3. SHARES SUBJECT TO PLAN.
Subject to adjustment under the provisions of Section 10
hereof, the maximum number of shares of Common Stock which may be issued and
sold under this Plan is 1,270,000 shares; provided, however, that no optionee
shall be granted Options for more than 250,000 shares of Common Stock in a
two-year period. Such shares may be either authorized and unissued shares or
shares issued and thereafter acquired by the Company, or a combination thereof.
Shares issued pursuant to the exercise of Options shall be subject to all
applicable provisions of the Certificate of Incorporation and By-Laws of the
Company in existence at the time of issuance thereof and at all times
thereafter. If an Option shall terminate or cease to be exercisable by reason of
expiration, surrender for cancellation or otherwise without having been wholly
exercised, the shares as to which the Option was not exercised shall no longer
be charged against the aggregate limitation under this Section and shall
thereafter be
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available for other grants. At no time may the sum of the maximum number of
shares issuable pursuant to outstanding Options and the number of shares
previously issued pursuant to Options exceed the maximum number of shares that
may be issued under this Plan as set forth above.
SECTION 4. ELIGIBILITY.
Subject to Section 12, options shall be granted only to
persons who at the time of grant are officers, directors or, in the Committee's
judgment, other key employees of the Company or any Subsidiary or other selected
persons. No Committee member shall be eligible for any option grant under the
Plan. Each Option granted to a person who is not an employee of the Company or
of a Subsidiary on the date of grant shall be designated as a Non-Qualified
Stock Option. In selecting individuals to be granted Options, the Committee may
take into consideration such factors as it may deem relevant, including its
estimation of the individual's present and potential contributions to the
success of the Company or of a Subsidiary. For purposes of this Plan, the term
"Subsidiary" shall mean any corporation in an unbroken chain of corporations
beginning with the Company if each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain, and shall include any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company if each of the
corporations other than the Company owns stock possessing 50% or more of the
combined voting power of all classes of stock in one of the other corporations
in such chain.
SECTION 5. EXERCISE PRICE OF OPTIONS AND ANNUAL
LIMITATION.
The exercise price with respect to each Option shall be
determined by the Committee, provided that the exercise price per share (i) with
respect to each Incentive Stock Option, shall not be less than 100%, and (ii)
with respect to each Non-Qualified Stock Option, shall not be less than 50%, of
the fair market value per share of the Common Stock at the date of the grant of
such Option, as determined by the Committee. The fair market value per share of
the Common Stock at the date of grant of an Incentive Stock Option shall be
determined by the Committee in accordance with the provisions of the Internal
Revenue Code and the Regulations from time to time in effect with respect to
"incentive stock options."
The aggregate fair market value (determined as of the time of
grant) of the stock with respect to which Incentive Stock Options under this
Plan (or incentive stock options, within the meaning of Section 422(b) of the
Internal Revenue Code, under any other stock option plan of the Company or any
Subsidiary) are exercisable for the first time by an employee during any
calendar year shall not exceed the sum of $100,000. The limitation of the
preceding sentence shall not apply to the grant of Non-Qualified Stock Options
under this Plan.
SECTION 6. OPTION PERIOD AND RIGHT TO EXERCISE OPTION.
Subject to the provisions of Section 9 below, the option
period under each Option and the vesting schedule for such Option shall be
determined by the Committee at the time the Option is granted, provided that (a)
no Incentive Stock Option shall be exercisable for a period of more than ten
years from the date such Incentive Stock Option is granted and (b) no
Non-Qualified Stock Option shall be exercisable for a period of more than ten
years and one day from the date such Non-Qualified Stock Option is granted.
Unless otherwise determined by the Committee and provided in the option
instrument, no Option granted under this Plan may be exercised unless, at the
time of such exercise, the optionee is employed by the Company or a Subsidiary
(or, in the case of a Non- Qualified Option, the optionee is providing services
to the Company or to a Subsidiary) and has been continuously employed by one or
more of such corporations (or, in the case of a Non-Qualified Option, has been
continuously providing services to one or more of such corporations) since the
date of grant of such Option, and except that if the Option so provides:
(i) the Option shall be exercisable, as and to the extent
exercisable at the time of the termination of such optionee's
employment, within, but only within, the period of three months
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beginning with the date the optionee terminates employment with the
Company or a Subsidiary if the termination is with the consent of the
Company; PROVIDED, HOWEVER, that in no event may any Option be
exercised after the date the Option expires; and
(ii) if the optionee dies while in the employ of the Company
or a Subsidiary or within three months beginning on the date that the
optionee ceases to be such an employee, the Option shall be exercisable
by the person to whom it is transferred by will or the laws of descent
and distribution, as and to the extent it was exercisable by the
optionee on the date of the optionee's death, within, but only within,
the period of one year beginning with the date of optionee's death;
PROVIDED, HOWEVER, that in no event may any Option be exercised after
the date the Option expires; and
(iii) if the optionee becomes disabled (within the meaning of
Section 22(e)(3) of the Internal Revenue Code) while in the employ of
the Company or a Subsidiary and such optionee's employment terminates
by reason of such disability, the Option shall be exercisable by such
optionee, as and to the extent exercisable by such optionee at the time
of such termination, within, but only within, the period of one year
beginning with the date of such termination; PROVIDED, HOWEVER, that in
no event may any Option be exercised after the date the Option expires;
and
(iv) where such Option is a Non-Qualified Option, it may have
terms substantially consistent with clauses (i), (ii) and (iii) above
in the case of an optionee who is not an employee.
For purposes of each incentive Stock Option, "employment"
shall be defined in accordance with the provisions of Section 1.421-7(h) of the
Regulations or any successor provisions. Nothing in this Plan or in any Option
shall confer on any individual any right to continue in the employ of the
Company or any Subsidiary or interfere in any way with the right of the Company
or such Subsidiary to terminate such person's employment at any time.
Options shall be exercised by written notice to the Company in
form satisfactory to it. Subject to the provisions of Section 14, the option
price shall be paid in cash, certified or bank cashier's check or, if the Option
so permits, in shares of Common Stock (valued at the fair market value thereof
as determined by the Committee) or a combination of cash, check (as provided
above) and/or shares of Common Stock. An optionee shall have none of the rights
of a stockholder of the Company until the shares to which the exercise of an
Option relates are issued to such person.
Two or more Options may be granted under this Plan to the same
person, one or more of which may be Incentive Stock Options and one or more of
which may be Non-Qualified Stock Options. Such Options, which may relate to
different numbers of shares and may contain different terms (including different
purchase prices), may be granted simultaneously and/or from time to time during
the duration of this Plan, provided that in no event may any Incentive Stock
Option provide that the number of shares that the optionee may purchase
thereunder shall be reduced in relation to the number of shares that the
optionee has purchased under any other Option, nor may any Non-Qualified Stock
Option provide that the number of shares that the optionee may purchase
thereunder shall be reduced in relation to the number of shares that the
optionee has purchased under any Incentive Stock Option.
The Committee may permit the voluntary surrender of all or a
portion of any Option to be conditioned upon the granting to the optionee of a
new Option to purchase the same or a different number of shares as the Option
surrendered, or may require surrender of all or a portion of any Option as a
condition precedent to the grant of a new Option to such employee. Such new
Option shall be exercisable at the price, during the period and in accordance
with all other terms and conditions specified by the Committee at the time the
new Option is granted, all determined in accordance with the provisions of this
Plan without regard to the price, period of exercise or any other terms or
conditions of the Option surrendered.
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4
SECTION 7. NON-TRANSFERABILITY.
Except as otherwise specified by the Committee with respect to
Non-Qualified Stock Options, no Option granted under this Plan shall be
transferable by the person to whom it is granted otherwise than by will or the
laws of descent and distribution, and each Option shall be exercisable, during
the lifetime of the person to whom it is granted, only by such person.
SECTION 8. COMPANY'S RIGHT TO REPURCHASE OPTION
SHARES.
At the discretion of the Committee, the Company may reserve to
itself or its assignee(s) at the time of any grant of Options to any person a
right to repurchase from such person any or all shares of Common Stock as to
which such Options are exercised upon such person's termination of employment or
service with the Company or any Subsidiary for any reason within a specified
time as.determined by the Committee at the time of grant. The price for any such
repurchase shall equal, in the Committee's discretion, as set forth in the
granting instrument, either (i) the original purchase price for such shares
(provided that the right to repurchase at such price shall, if so determined by
the Committee, lapse with regard to at least 20% of such shares for each year
from the date of grant), (ii) the fair market value of such shares as determined
by the Committee in good faith or (iii) a price determined by a formula or other
provision set forth in the grant.
SECTION 9. SPECIAL PROVISIONS APPLICABLE TO OPTIONS
GRATED TO TEN PERCENT STOCKHOLDERS.
In the event that any Incentive Stock Option is granted under
this Plan to any individual who, at the time such Option is granted, owns stock
possessing more than ten percent of the total combined voting power of all
classes of stock of the Company or any Subsidiary, the exercise price per share
with respect to such Incentive Stock Option shall be at least 110% of the fair
market value per share of the Common Stock at the time such Incentive Stock
Option is granted (determined as provided in Section 5 hereof) and such
Incentive Stock Option shall not be exercisable after the expiration of five
years from the date it is granted.
SECTION 10. ADJUSTMENTS UPON CHANGES IN
CAPITALIZATION.
In the event of a reorganization, recapitalization, stock
split, stock dividend, combination of shares, merger, consolidation or rights
offering, or any other change in the corporate structure or shares of the
Company, pursuant to any of which events the then outstanding shares of Common
Stock are split up, combined or changed into, become exchangeable at the
holder's election for or entitle the holder thereof to other shares of stock, or
upon the occurrence of any other transaction described in Section 424 of the
Internal Revenue Code, the Committee may change the number and kind of shares
available under this Plan (including substitution of shares of another
corporation) and the exercise price of any Option in any manner as it shall deem
equitable, provided that in no event may any change be made under this Section
10 to any Incentive Stock Option which would constitute a "modification" thereof
within the meaning of Section 424(h)(3) of the Internal Revenue Code. The
Committee shall also have the authority, in the event of a sale of all or
substantially all of the assets or outstanding capital stock of the Company, the
dissolution or liquidation of the Company, the merger or consolidation of the
Company with or into any other company, the merger or consolidation of any other
company into the Company, or the making of a tender offer to purchase all or a
substantial portion of the shares of the Company, to amend all outstanding
Options (upon such conditions as it shall deem fit) to require the termination
of such Options as of the effective date of such transaction; PROVIDED, HOWEVER,
that upon such termination, the Company shall redeem such Options for an amount
equal to the difference between the exercise price of such Options to the extent
then exercisable (unless a greater portion shall otherwise be provided by the
Committee) and the fair market value, as of the date of such redemption, of the
shares subject to such Options. The Options shall contain such provisions as are
consistent with the foregoing with respect to adjustments to be made in the
number and kind of shares covered by such Options and in the exercise price per
share in the event of any such change.
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5
SECTION 11. CHANGE OF CONTROL.
In the event a Change of Control (as defined below) occurs,
Options which are not vested pursuant to the terms and conditions of this
Agreement immediately prior to the time such Change of Control occurs shall
become immediately and fully exercisable in an amount equal to (A) a number of
Options determined by multiplying 25% of the aggregate number of Shares of
Common Stock originally subject to this Agreement by a fraction, the denominator
of which is 12 and the numerator of which is the number of months that have
elapsed since the Vesting Date immediately preceding the occurrence of the
Change of Control and the date of the Change of Control, plus (B) a number of
Options determined by multiplying the total number of Options which are not
fully exercisable as of the date of the Change of Control (excluding the number
of Options determined in A above) by 50%. For purposes of this Agreement, a
"Change in Control" shall have occurred if at any time during the term of this
Agreement any of the following events shall occur:
(a) The Company is merged, consolidated or reorganized into or
with another corporation or other person (as the term "person" is used in
Section 13(d)(3) or Section 14(d)(2) of the Securities Act of 1934 (the
"Exchange Act"), and as a result of such merger, consolidation or reorganization
less than fifty percent (50%) of the combined voting power of the outstanding
securities of such corporation or person immediately after such transaction are
held in the aggregate by the holders of securities representing the combined
voting power of the outstanding securities entitled to vote generally in the
election of directors of the Company ("Voting Stock") immediately prior to such
transaction;
(b) The Company sells or otherwise transfers all or
substantially all of its assets to another corporation or other person, and as a
result of such sale or transfer less than fifty percent (50%) of the combined
voting power of the then outstanding securities of such corporation or person
immediately after such sale or transfer is held in the aggregate by the holders
of Voting Stock immediately prior to such sale or transfer.
SECTION 12. SUBSTITUTED OPTIONS.
Options may be granted from time to time in substitution for
stock options and/or stock appreciation rights held by employees of other
corporations who become associated with the Company or a Subsidiary as the
result of a merger or consolidation of such other corporation with the Company
or such Subsidiary, the acquisition by the Company or a Subsidiary of the assets
of such other corporation or the acquisition by the Company or a Subsidiary of
stock of such other corporation as the result of which such other corporation
becomes a Subsidiary, or such options or rights may be assumed by the Company.
The terms and conditions of the substitute Options so granted may vary from the
terms and conditions set forth in Section 5 hereof to such extent as the Board
of Directors may deem appropriate to conform, in whole or in part, to the
provisions of the instruments in substitution for which they are granted.
SECTION 13. REGISTRATION, LISTING AND QUALIFICATION.
Each Option shall be subject to the requirement that if at any
time the Board of Directors shall determine that the registration, listing or
qualification of the Common Stock issuable upon exercise thereof on any
securities exchange or under any federal or state law, or the consent or
approval of any governmental regulatory body, is necessary or desirable as a
condition of or in connection with the granting of such Option or the purchase
of shares of Common Stock pursuant to exercise thereof, such Option may not be
exercised unless and until such registration, listing, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Board of Directors. The Company shall not be obliged to
register any securities pursuant to the Securities Act of 1933, as now in effect
or as hereafter amended (the "Securities Act"), or to take any other action in
order to cause the issuance and delivery of share certificates pursuant to the
Plan to comply with any law, regulation or requirement; PROVIDED, HOWEVER, that
the Company will use its best efforts to make available an exemption from
registration under the Securities Act. Shares received upon exercise of Options
may be legended to the extent deemed necessary by the Company, and the Company
may require that any person exercising an
<PAGE> 6
6
Option shall make such representations and agreements and furnish such
information as it deems appropriate to assure compliance with the foregoing and
all other applicable legal requirements.
SECTION 14. INSTALLMENT PAYMENTS, LOANS AND GUARANTEES
OF LOANS.
The Committee may, in its discretion, assist any optionee
(including an optionee who is an officer of the Company) in the acquisition of
shares pursuant to the exercise or surrender of one or more Options under this
Plan by (a) authorizing the extension of a loan from the Company to such
optionee, (b) permitting the optionee to pay the option price in installments
over a period of years and (c) authorizing a guarantee by the Company of a third
party loan to the optionee, provided that the instrument evidencing the Option
permits, or is amended to permit, such an extension of credit. Any such
extension of credit shall be upon such terms, with or without security, as the
Committee shall specify, provided that the maximum principal amount of such
credit shall be the purchase price, if any, paid for the shares acquired plus
the maximum federal, state and local income and employment tax which the
optionee might incur in connection with such acquisition.
SECTION 15. EFFECTIVE DATE, DURATION AND TERMINATION
OF PLAN.
This Plan shall become effective upon adoption by the Board of
Directors and approval by the Company's stockholders at the 1992 annual meeting.
Options may be granted under this Plan at any time on or prior to the tenth
anniversary of the effective date hereof as set forth above, on which date this
Plan shall expire except as to Options then outstanding hereunder, which Options
shall remain in effect until they have been exercised or have expired. This Plan
may be abandoned or terminated at any time by the Board of Directors except with
respect to Options then outstanding hereunder.
SECTION 16. OTHER ACTIONS.
Nothing contained herein shall be construed to limit the
authority of the Company to exercise its corporate rights and powers, including,
without limitation, its right to grant or assume options other than under this
Plan with respect to any employee or other person, firm, corporation or other
entity.
SECTION 17. TRANSFERABILITY.
No option shall be transferable by the optionee except by will
or the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined by the Internal Revenue Code or Title I of the
Employee Retirement Income Security Act.
SECTION 18. AMENDMENT OR MODIFICATION OF PLAN.
The Board of Directors may, from time to time, discontinue,
alter, amend or modify this Plan for the purpose of meeting any changes in legal
requirements or for any other purpose that the Board may deem advisable,
provided that no such amendment or modification, except as permitted by the
provisions of Section 10 above, shall (a) change the maximum number of shares to
be issued pursuant to exercise of Options, (b) change the class of employees
eligible to receive Options, (c) reduce the minimum exercise price of Options or
(d) materially increase the benefits accruing to an optionee under this Plan,
within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934, as
amended, unless such amendment or modification shall be approved by a majority
in interest of the Company's stockholders.
<PAGE> 1
Exhibit 5
JONES, DAY, REAVIS & POGUE
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
May 19, 1997
Gliatech Inc.
23420 Commerce Park Road
Cleveland, Ohio 44122
Re: Amended and Restated 1989 Stock Option Plan
-------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Gliatech Inc., a Delaware corporation (the
"Registrant"), in connection with the Amended and Restated 1989 Stock Option
Plan (the "Plan"). We have examined such documents, records and matters of law
as we have deemed necessary for purposes of this opinion, and based thereupon,
we are of the opinion that the shares of Common Stock, $0.01 par value per share
(the "Common Stock"), that may be issued or transferred and sold pursuant to the
Plan (and the authorized forms of Stock Option Agreements thereunder (the
"Agreements")) will be, when issued or transferred and sold in accordance with
the Plan and the Agreements, and assuming receipt of consideration at least
equal to the par value of the Common Stock, duly authorized, validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement on Form S-8 filed by the Registrant to effect
registration of the shares of Common Stock to be issued or transferred and sold
pursuant to the Plan under the Securities Act of 1933.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
Jones, Day, Reavis & Pogue
<PAGE> 1
Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-XXXXX) pertaining to the Amended and Restated 1989 Stock Option Plan
of Gliatech Inc. of our report dated February 11, 1997 with respect to the
consolidated financial statements of Gliatech Inc. included in its Annual Report
(Form 10-K) for the year ended December 31, 1996, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Cleveland, Ohio
May 19, 1997
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of Gliatech Inc., a Delaware corporation (the "Company"), hereby
constitutes and appoints Thomas O. Oesterling, Ph.D., Rodney E. Dausch, Michael
A. Zupon, Ph.D. and Thomas C. Daniels, and each of them, his true and lawful
attorney or attorneys-in-fact, with full power of substitution and revocation,
for him and in his name, place and stead, to sign on his behalf as an officer or
director of the Company a Registration Statement or Registration Statements on
Form S-8 pursuant to the Securities Act of 1933 concerning certain Common Stock
of the Company to be offered in connection with the Company's Amended and
Restated 1989 Stock Option Plan, and to sign any and all amendments or
post-effective amendments to such Registration Statement(s), and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission or any state regulatory authority,
granting unto said attorney or attorneys-in-fact, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as they might or could do in person, hereby ratifying and confirming
all that said attorney or attorneys-in-fact or any of them or their substitute
or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple counterparts, each
of which shall be deemed an original with respect to the person executing it.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the 14th day of May 1997.
/s/ Thomas O. Oesterling, Ph.D. /s/ Ronald Henriksen
- -------------------------------------------- ---------------------------
Thomas O. Oesterling, Ph.D. Ronald Henriksen
President, Chief Executive Officer and Director Director
/s/ Rodney E. Dausch /s/ Irving S. Shapiro
- -------------------------------------------- ---------------------------
Rodney E. Dausch Irving S. Shapiro
Vice President and Chief Financial Officer Director
/s/ Robert P. Pinkas /s/ John L. Ufheil
- -------------------------------------------- ---------------------------
Robert P. Pinkas John L. Ufheil
Chairman of the Board Director
/s/ Allen H. Ford /s/Theodore E. Haigler, Jr.
- -------------------------------------------- ---------------------------
Allen H. Ford Theodore E. Haigler, Jr.
Director Director
/s/ Karen Diedrich
- -------------------------------------------
Karen Diedrich
Principal Accounting Officer
