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As filed with the Securities and Exchange Commission on April 5, 2000
Registration No. 333-____________
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UNITED STATES
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 O. Oesterling, Ph.D.
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
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============================================================================================================================
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 Offering Price Fee (2)
============================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, $0.01 par 850,000 $16.47 $13,999,500 $3,695.87
value per share (3)
============================================================================================================================
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(1) Pursuant to Rule 416 of the Securities Act of 1933, this registration
statement also covers such additional common stock, $0.01 par value per
share, 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 Stock
Market, Inc. on March 31, 2000, within five business days prior to
filing.
(3) Each share of common stock includes one preferred share purchase right
(the "Right"). Each Right, when exercisable, entitles the holder to
purchase one one-hundredth of a share of the registrant's Series A
Participating Preferred Stock. Such Rights are not currently
exercisable or transferrable independently of the common stock. The
terms of the Rights are described in the registration statement on Form
8-A as filed with the Securities and Exchange Commission by the
Registrant on July 2, 1997, as amended as of November 19, 1999.
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, as amended by Form S-8 (Registration No. 333-27477) as of May 20, 1997, to
register shares of common stock, $0.01 par value per share (the "Common Stock"),
of Gliatech Inc., a Delaware corporation (the "Company") to be issued under the
Amended and Restated 1989 Stock Option Plan (the "Plan") of the Company, are
hereby incorporated herein by reference. This registration statement on Form S-8
is filed for the purpose of registering an additional 850,000 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 is hereby
incorporated by reference to Exhibit A of the Company's Schedule
14A as filed with the Securities and Exchange Commission on
April 12, 1999 (File No.
000-20096)
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).
4(e) Rights Agreement, dated as of July 1, 1997, by and between
Gliatech Inc. and American Stock Transfer & Trust Company, as
Rights Agent, is hereby incorporated by reference to Exhibit 1
of the Registration Statement on Form 8-A (File No. 000-20096).
4(f) Amendment No. 1 to the Rights Agreement, dated November 17,
1999, by and between Gliatech Inc. and American Stock Transfer
and Trust Company, as Rights Agent, is hereby incorporated by
reference to Exhibit 4.1 of the Registration Statement on Form
8-A/A (File No. 000-20096).
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cleveland, State of Ohio, on this 5th day of April
2000.
GLIATECH INC.
By: /S/ RODNEY E. DAUSCH
-----------------------------------
Rodney E. Dausch, Executive 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.
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Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman of the Board, Chief Executive April 5, 2000
- ------------------------------------
Thomas O. Oesterling Ph.D. Officer, (Principal Executive Officer)
and Director
/S/ RODNEY E. DAUSCH Executive Vice President and Chief April 5, 2000
- ------------------------------------
Rodney E. Dausch Financial Officer (Principal Financial
and Accounting Officer)
* Director April 5, 2000
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Robert P. Pinkas
* Director April 5, 2000
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Theodore E. Haigler, Jr.
* Director April 5, 2000
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Ronald D. Henriksen
* Director April 5, 2000
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Irving S. Shapiro
* Director April 5, 2000
- ------------------------------------
John L. Ufheil
* Director April 5, 2000
- ------------------------------------
William A. Clarke
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* 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.
April 5, 2000 By: /S/ RODNEY E. DAUSCH
-----------------------------------
Rodney E. Dausch, Executive 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 is hereby
incorporated by reference to the Company's Schedule 14A as filed
with the Securities and Exchange Commission on April 12, 1999
(File No. 000-20096).
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).
4(e) Rights Agreement, dated as of July 1, 1997, by and between
Gliatech Inc. and American Stock Transfer & Trust Company, as
Rights Agent, is hereby incorporated by reference to Exhibit 1
of the Registration Statement on Form 8-A (File No. 000-20096).
4(f) Amendment No. 1 to the Rights Agreement, dated November 17,
1999, by and between Gliatech Inc. and American Stock Transfer
and Trust Company, as Rights Agent, is hereby incorporated by
reference to Exhibit 4.1 of the Registration Statement on Form
8-A/A (File No. 000-20096).
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.
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Exhibit 5
JONES, DAY, REAVIS & POGUE
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
April 5, 2000
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
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Exhibit 23 (a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Amended and Restated 1989 Stock Option Plan for the
registration of 850,000 Common Shares of our report dated March 3, 2000 with
respect to the consolidated financial statements and schedule of Gliatech Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1999,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Cleveland, Ohio
April 4, 2000
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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 (i) Amended and
Restated 1989 Stock Option Plan, (ii) Amended and Restated 1995 Nonemployee
Director Stock Option Plan and (iii) certain additional grants of stock options
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 19th day of May 1999.
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<S> <C>
/S/ Thomas O. Oesterling, Ph.D. /S/ Ronald D. Henriksen
- ---------------------------------------- ---------------------------------
Thomas O. Oesterling, Ph.D. Ronald D. Henriksen
Chief Executive Officer and Director
Director (Principal Executive Officer)
/S/ Rodney E. Dausch /S/ Irving S. Shapiro
- ---------------------------------------- ---------------------------------
Rodney E. Dausch Irving S. Shapiro
Executive Vice President and Director
Chief Financial Officer
(Principal Financial and Accounting
Officer)
/S/ Robert P. Pinkas /S/ John L. Ufheil
- ---------------------------------------- ---------------------------------
Robert P. Pinkas John L. Ufheil
Director Director
/S/ William A. Clarke /S/ Theodore E. Haigler, Jr.
- ---------------------------------------- ---------------------------------
William A. Clarke Theodore E. Haigler, Jr.
Director Director
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