<PAGE> 1
As filed with the Securities and Exchange Commission on April 5, 2000
Registration No. 333-________
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)
INDIVIDUAL STOCK OPTION AGREEMENTS
BETWEEN GLIATECH INC. AND CERTAIN DIRECTORS
(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
<TABLE>
<CAPTION>
============================================================================================================================
Title of Amount to be Proposed Maxi- Proposed Maxi- Amount of
Securities to Registered (1) mum Offering mum Aggregate Registration
be Registered Price Per Share Offering Price Fee(2)
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share(3) 9,000 $16.47 $148,230 $39.13
============================================================================================================================
</TABLE>
(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 individual stock option agreements between Gliatech Inc. and
certain directors.
(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
Junior 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 3
Page 1 of 9
<PAGE> 2
Part II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by Gliatech Inc. (the
"Registrant") with the Securities and Exchange Commission ("Commission") are
incorporated herein by reference:
(a) Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999; and
(b) The description of the Common Stock contained in the
Registrant's Registration Statement on Form 8-A/A (the "Form
8-A/A") filed by the Registrant with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of
1934 (the "Exchange Act") for purposes of registering such
securities thereunder, as such Form 8-A was amended as of July
2, 1997 and further amended as of November 19, 1999, to
include the description of the Rights and any amendment or
report filed for the purpose of updating such descriptions.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which de-registers all securities then remaining unsold shall be deemed
to be incorporated herein by reference and to be part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Articles Seventh and Eighth of the Registrant's Second Restated
Certificate of Incorporation, incorporated herein by reference, and Article IX
of the Registrant's Amended and Restated By-laws, incorporated herein by
reference, which allow indemnification of officers and directors to the fullest
extent permitted for a corporation organized under the laws of Delaware.
The state of Delaware permits a corporation to indemnify current and
former directors and officers against a wide range of costs actually and
reasonably incurred in connection with an action, suit or proceeding that
involves the indemnified person's service to the corporation, including certain
expenses incurred in actions or suits brought on behalf of the corporation. Such
indemnity is subject to certain standards of conduct by the indemnified person
and to other conditions. Under certain circumstances, expenses may be paid in
advance of the final disposition of an action, suit or proceeding, subject to
the possibility of repayment to the corporation.
The Registrant maintains directors and officers liability insurance for
its directors and executive officers. Item 14 in Part II of Registrant's
Registration Statement on Form S-1 (Reg. No. 33-96460), as amended, is
incorporated herein by reference.
Item 7. EXEMPTION FROM REGISTRATION CLAIMS
Not Applicable.
Page 2 of 9
<PAGE> 3
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) 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(d) 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(e) 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.
Item 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
Page 3 of 9
<PAGE> 4
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be in the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by
a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
Page 4 of 9
<PAGE> 5
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 April 5, 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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman of the Board, Chief Executive April 5, 2000
- ------------------------------------- Officer, (Principal Executive Officer)
Thomas O. Oesterling Ph.D. and Director
/S/ RODNEY E. DAUSCH Executive Vice President and Chief April 5, 2000
- ------------------------------------- Financial Officer (Principal Financial
Rodney E. Dausch and Accounting Officer)
* Director April 5, 2000
- -------------------------------------
Robert P. Pinkas
* Director April 5, 2000
- -------------------------------------
Theodore E. Haigler, Jr.
* Director April 5, 2000
- -------------------------------------
Ronald D. Henriksen
* Director April 5, 2000
- -------------------------------------
Irving S. Shapiro
* Director April 5, 2000
- -------------------------------------
John L. Ufheil
* Director April 5, 2000
- -------------------------------------
William A. Clarke
</TABLE>
* 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.
By: /S/ RODNEY E. DAUSCH April 5, 2000
----------------------------------------------
Rodney E. Dausch
Executive Vice President, Chief Financial Officer and
Secretary
Page 5 of 9
<PAGE> 6
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) 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(d) 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(e) 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.
Page 6 of 9
<PAGE> 1
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: GLIATECH INC. OPTION AGREEMENTS
Ladies and Gentlemen:
We have acted as counsel for Gliatech Inc., a Delaware corporation (the
"Registrant"), in connection with the stock option agreements between Registrant
and (i) Ronald D. Henriksen, dated as of December 30, 1997 and (ii) John L.
Ufheil, dated as of April 1, 1998 (the "Option Agreements"). We have examined
such documents, records and matters of law as we have deemed necessary for
purposes of this opinion, and based thereon, we are of the opinion that the
Registrant's common stock, $0.01 par value per share (the "Common Stock"), that
may be issued or transferred and sold pursuant to the Option Agreements, will
be, when issued or transferred and sold in accordance with the Option
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 and sold pursuant to the
Option Agreements under the Securities Act of 1933.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
Page 7 of 9
<PAGE> 1
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Individual Stock Option Agreements Between Gliatech Inc.
and Certain Directors for the registration of 9,000 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
Page 8 of 9
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
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.
<TABLE>
<CAPTION>
<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 Chief Financial Officer Director
(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
</TABLE>
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