As filed with the Securities and Exchange Commission on January 8, 1999
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
MSC INDUSTRIAL DIRECT CO., INC.
(Exact Name of Registrant as Specified in Its Charter)
New York 11-3289165
(State or other Jurisdiction of (I.R.S Employer
Incorporation or Organization) Identification Number)
75 Maxess Road
Melville, New York 11747
(Address of Principal Executive Offices)
-------------------
MSC Industrial Direct Co., Inc.
Associate Stock Purchase Plan
(Full Title of the Plan)
-------------------
Mitchell Jacobson Copy to:
Chairman, President and Chief Executive Officer Joseph L. Getraer, Esq.
MSC Industrial Direct Co., Inc. Rosenman & Colin LLP
75 Maxess Road 575 Madison Avenue
Melville, New York 11747 New York, New York 10022
(516) 812-2000 (212) 940-8800
(Name, Address and Telephone Number
of Agent for Service)
-------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================
Proposed
Title of maximum Proposed maximum Amount of
Securities to Amount to be offering price aggregate offering Registration
Be registered registered per share(1) price(1) fee(1)
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock,
par value $0.001 per
share 500,000 $22.375 $11,187,500.00 $3,115.00
===============================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee;
computed, pursuant to Rule 457(c), upon the basis of the average of the
high and low prices of the Class A Common Stock as quoted on the New York
Stock Exchange on January 7, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
MSC Industrial Direct Co., Inc. (the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and, in accordance therewith, files reports and other
information with the Securities and Exchange Commission (the "Commission"). The
following documents, or portions thereof, filed by the Company with the
Commission pursuant to the Exchange Act (File No. 1-14130) are incorporated by
reference in this Registration Statement:
a. The Company's Annual Report on Form 10-K for the fiscal year ended August
29, 1998, filed with the Commission on November 18, 1998;
b. The information in respect of the Company's Class A common stock $.001 par
value (the "Class A Common Stock") under the caption "Description of
Capital Stock" contained in the Company's Registration Statement on Form
S-3 (Registration No. 333-31837) filed with the Commission on July 30,
1997, as amended.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment hereto indicating that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
of this Registration Statement from the respective dates of filings of such
documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain partners and associates of Rosenman & Colin LLP of New York, New
York which serves as counsel to the Company, own an aggregate of 22,400 shares
of Class A common stock, $.001 par value. In addition, Joseph L. Getraer, a
partner of Rosenman & Colin LLP, may be deemed to have beneficial ownership over
2,000,000 shares of Class B common stock, $.001 par value, as sole trustee of
the Mitchell Jacobson 1998 Qualified Seven Year Annuity Trust.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article EIGHTH of the Company's Certificate of Incorporation and Section
722 of the New York Business Corporation Law, as amended, the law of the state
in which the Company is incorporated, empowers a corporation, within certain
limitations, to indemnify any person who served in any capacity at the request
of the corporation, by reason of the fact that he, his testator or intestate,
was a director or officer of the corporation, or served such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise in
any capacity, against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys' fees actually and necessarily incurred
as a result of such action or proceeding, or any appeal therein, if such
director or officer acted, in good faith, for a purpose which he reasonably
believed to be in, or, in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the corporation
<PAGE>
and, in criminal actions or proceedings, in addition, had no reasonable cause to
believe that his conduct was unlawful.
Article SEVENTH of the Company's Certificate of Incorporation, provides:
No director of the Corporation shall be personally liable to the
Corporation or its shareholders for damages for any breach of duty in such
capacity, provided that nothing contained in this Article SEVENTH shall
eliminate or limit the liability of any director if a judgment or other final
adjudication adverse to him or her establishes that his or her acts or omissions
were in bad faith or involved intentional misconduct or a knowing violation of
law or that he or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled or that his or her acts
violated Section 719, or its successor, of the New York Business Corporation
Law.
ITEM 8. EXHIBITS
Exhibit No. Description
- ----------- -----------
4.1 Form of Class A Common Stock Certificate (incorporated by
reference to Exhibit 4.01 to the Company's Registration
Statement on Form S-1, Registration No. 33-98832, as amended).
4.2 MSC Industrial Direct Co., Inc. Associate Stock Purchase Plan.
5.1 Opinion of Rosenman & Colin LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Rosenman & Colin LLP (included in Exhibit 5.1).
2
<PAGE>
ITEM 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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 of 1933 (the
"Act"); (ii) to reflect in the prospectus any facts or events arising after the
effective date of this registration statement (or the most recent post-effective
amendment hereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this registration statement; provided,
however, that clauses (i) and (ii) do not apply if the information required to
be included in a post-effective amendment by those clauses is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(b) That, for the purpose of determining any liability under the
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; and
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Act, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the 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 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.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 New York, State of New York, on this 8th day of
January, 1999.
MSC INDUSTRIAL DIRECT CO., INC.
By: /s/ Mitchell Jacobson
----------------------------------------
Mitchell Jacobson
Chairman of the Board of Directors,
President and Chief Executive Officer
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.
/s/ Mitchell Jacobson Chairman of the Board of January 8, 1999
- ----------------------------- Directors, President and Chief
Mitchell Jacobson Executive Officer (Principal
Executive Officer)
Vice Chairman of the Board of
- ----------------------------- Directors
Sidney Jacobson
/s/ James Schroeder Director, Vice President of January 8, 1999
- ----------------------------- Logistics
James Schroeder
/s/ Shelley Boxer Director, Vice President and January 8, 1999
- ----------------------------- Chief Financial Officer
Shelley Boxer (Principal Financial and
Accounting Officer)
Director
- -----------------------------
Denis Kelly
/s/ Raymond Langton Director January 8, 1999
- -----------------------------
Raymond Langton
/s/ Roger Fradin Director January 8, 1999
- -----------------------------
Roger Fradin
4
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Form of Class A Common Stock Certificate (incorporated by
reference to Exhibit 4.01 to the Company's Registration
Statement on Form S-1, Registration No. 33-98832, as amended).
4.2 MSC Industrial Direct Co., Inc. Associate Stock Purchase Plan.
5.1 Opinion of Rosenman & Colin LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Rosenman & Colin LLP (included in Exhibit 5.1).
5
Exhibit 4.2
MSC INDUSTRIAL DIRECT CO., INC.
ASSOCIATE STOCK PURCHASE PLAN
The following are the provisions of the MSC Industrial Direct Co., Inc.
Associate Stock Purchase Plan (the "Plan").
1. Purpose.
The purpose of the Plan is to provide Associates of MSC Industrial Direct
Co., Inc. (the "Company") and its Subsidiaries with an opportunity to
purchase shares of the Company's Class A Common Stock. The Plan is
intended to qualify as an "employee stock purchase plan" under Section 423
of the Code. The provisions of the Plan will be construed so as to extend
and limit participation consistent with the requirements of the Code.
2. Definitions.
a) "Associate" shall mean any person, including an officer, who is
customarily employed by the Company or one of its Designated
Subsidiaries, for at least twenty (20) hours per week and more than
five (5) months in a calendar year.
b) "Board" shall mean the Board of Directors of the Company.
c) "Class A Common Stock" shall mean the Class A Common Stock, $.001
par value, of the Company.
d) "Code" shall mean the Internal Revenue Code of 1986, as amended.
e) "Company" shall mean MSC Industrial Direct Co., Inc.
f) "Compensation" shall mean all regular straight time gross earnings
and commissions, and shall include payments for overtime, shift
premium, incentive compensation, incentive payments, bonuses and
other compensation.
g) "Continuous Status as an Associate" shall mean the absence of any
interruption or termination of service as an Associate. Continuous
Status as an Associate shall not be considered interrupted in the
case of a leave of absence agreed to in writing by the Company or a
Subsidiary, provided that such leave is for a period of not more
than 90 days or re-employment upon the expiration of such leave is
guaranteed by contract or statute.
h) "Contributions" shall mean all amounts credited to the account of a
participant pursuant to the Plan.
i) "Designated Subsidiaries" shall mean the Subsidiaries which have
been designated by the Board in its sole discretion as eligible to
participate in the Plan.
j) "Exercise Date" shall mean the last business day of each Offering
Period of the Plan.
k) "Fair Market Value" shall mean as of any Offering Date (i) the
closing sale price of the Class A Common Stock on the New York Stock
Exchange on the business day immediately preceding such Offering
Date or (ii) if there is no sale of the Class A Common Stock on such
Exchange on such business day, the average of the bid and asked
prices on such Exchange at the close of the market on such business
day.
l) "Offering Date" shall mean the first day of each Offering Period of
the Plan.
m) "Offering Period" shall mean a period of three (3) months commencing
on the following dates of each year except as otherwise determined
by the Company:
i) November 1,
ii) February 1,
iii) May 1, and
iv) August 1.
n) "Purchase Price" shall mean 85% of the Fair Market Value of the
Class A Common Stock as of the Offering Date.
o) "Subsidiary" shall mean a corporation, domestic or foreign, of which
not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is
hereafter organized or acquired by the Company or a Subsidiary.
<PAGE>
3. Eligibility.
a) Any person who has been an Associate for thirty-one (31) days as of
the Offering Date of a given Offering Period shall be eligible to
participate in such Offering Period under the Plan, subject to the
requirements of Section 5 and the limitations imposed by Section
423(b) of the Code.
b) An Associate shall not be granted an option under the Plan, if:
i) immediately after the grant, the Associate (or any other
person whose stock would be attributed to such Associate
pursuant to Section 424(d) of the Code) would own shares
and/or hold outstanding options to purchase shares possessing
five percent (5%) or more of the total combined voting power
or value of all classes of shares of the Company; or
ii) the rate of withholding under such option would permit the
Associate's rights to purchase shares under all "employee
stock purchase plans" (described in Section 423 of the Code)
of the Company and its Subsidiaries to accrue (i.e., become
exercisable) at a rate which exceeds Twenty-Five Thousand
Dollars ($25,000) of Fair Market Value of such shares
(determined at the time such option is granted) for each
calendar year in which such option is outstanding at any time.
4. Offering Periods.
a) The Plan shall be implemented by consecutive Offering Periods with a
new Offering Period to begin on or about November 1, February 1, May
1 and August 1 of each year (or at such other time or times as may
be determined by the Board). The first Offering Period shall begin
on November 1, 1998.
b) The Board will have the power to change the duration and/or the
frequency of an Offering Period with respect to any future offerings
without shareholder approval if such change is announced at least
fifteen (15) days prior to the scheduled beginning of the first
Offering Period to be affected.
5. Participation.
a) An Associate will become a participant in the Plan when the
Associate completes a subscription agreement provided by the
Company, determines a percentage, between one percent (1%) and
fifteen percent (15%) of such Associate's Compensation, to be
withheld as a payroll deduction and paid as his or her Contribution
to the Plan, and submits the subscription agreement to the payroll
office prior to the applicable Offering Date. Once enrolled, the
Associate shall remain enrolled in each subsequent Offering Period
of the Plan at the designated payroll deduction unless the Associate
withdraws by providing the Company with a written notice of
withdrawal or files a new subscription agreement prior to the
applicable Offering Date changing the Associate's designated payroll
deduction.
b) Payroll deductions begin on the first payroll date during the
applicable Offering Period and end on the last payroll date on or
prior to the Exercise Date of the Offering Period to which the
subscription agreement is applicable, unless sooner terminated by
the participant as provided in Section 10.
6. Method of Payment of Contributions.
a) Payroll deductions shall be made on each payroll date during the
Offering Period in an amount between one percent (1%) and fifteen
percent (15%) (in whole number increments) of a participant's
Compensation on each such payroll date.
b) All payroll deductions made by a participant will be credited to his
or her account under the Plan.
c) A participant may not make any additional payments into the account.
d) A participant may discontinue his or her participation in the Plan
as provided in Section 10, or may change the rate of his or her
payroll deduction during an Offering Period by completing and filing
with the Company a new authorization for payroll deduction, provided
that the Board may, in its discretion, impose reasonable and uniform
restrictions on a participant's ability to change the rate of
payroll deductions. The change in rate shall be effective no later
than fifteen (15) days following the Company's receipt of the new
authorization. A participant may decrease or increase the amount of
his or her payroll deductions as of the beginning of an Offering
Period by completing and filing with the Company, at least fifteen
(15) days prior to the beginning of such Offering Period, a new
payroll deduction authorization.
e) Notwithstanding the foregoing, to the extent necessary, but only to
such extent, to comply with Section 423(b)(8) of the Code and
Section 3(b) herein, a participant's payroll deductions may be
automatically
2
<PAGE>
decreased to zero percent (0%) at any time during any Offering
Period. Payroll deductions shall commence at the rate provided in
such participant's subscription agreement at the beginning of the
next succeeding Offering Period, unless terminated by the
participant as provided in Section 10.
7. Grant of Option.
a) An eligible Associate participating in an Offering Period may
purchase shares of the Company's Class A Common Stock on the
Exercise Date with the Contributions accumulated on or prior to such
Exercise Date.
b) The number of shares to be purchased on the Exercise Date shall be
determined by dividing the Purchase Price into the Contributions
accumulated in the participant's account as of the Exercise Date.
c) The maximum number of shares of the Class A Common Stock which may
be purchased during each Offering Period by a participant shall not
exceed 5,000 shares, and the purchase is subject to the limitations
set forth in Section 3(b) and 12.
8. Exercise of Option.
a) Unless a participant withdraws from the Plan as provided in Section
10, the Associate's option for the purchase of shares will be
exercised automatically on the Exercise Date of each Offering
Period.
b) The maximum number of shares will be determined based on the
Purchase Price and the accumulated Contributions in the
participant's account. No fractional shares shall be purchased; any
payroll deductions accumulated in a participant's account which are
not sufficient to purchase a full share shall be retained in the
participant's account and applied to the subsequent Offering Period,
subject to earlier withdrawal by the participant as provided in
Section 10 hereof.
c) The shares purchased will be issued to the participant as promptly
as practicable after the Exercise Date.
d) The option to purchase shares hereunder is exercisable only by the
participant.
9. Delivery.
As promptly as practicable after the Exercise Date of each Offering
Period, the Company shall arrange the delivery of shares to each
participant by means of direct deposit into the participant's brokerage
account.
10. Voluntary Withdrawal; Termination of Employment.
a) A participant may withdraw all, but not less than all, of the
payroll deductions credited to his or her account and not yet used
to exercise his or her option under the Plan at any time prior to an
Exercise Date by giving written notice to the Company on a form
provided for such purpose. If the participant withdraws from an
Offering Period, all of the participant's payroll deductions
credited to his or her account will be paid to the participant as
promptly as practicable after receipt of the notice of withdrawal,
his or her option for such Offering Period will be automatically
canceled, and no further payroll deductions for the purchase of
shares will be made during such Offering Period or subsequent
Offering Periods, except pursuant to a new subscription agreement
filed in accordance with Section 5 hereof.
b) Upon termination of the participant's Continuous Status as an
Associate prior to an Exercise Date of an Offering Period for any
reason, including retirement or death, the payroll deductions
accumulated in his or her account will be returned to him or her as
promptly as practicable after such termination or, in the case of
death, to the person or persons entitled thereto under Section 14,
his or her option will be automatically canceled and he or she will
be deemed to have elected to withdraw from the Plan.
c) A participant's withdrawal from an Offering Period will not have any
effect upon his or her eligibility to participate in a succeeding
Offering Period or in any similar plan that may hereafter be adopted
by the Company.
11. Interest.
No interest shall accrue on the Contributions of a participant in the
Plan.
3
<PAGE>
12. Stock.
a) The maximum number of shares of the Company's Class A Common Stock
made available for sale under the Plan is 500,000 and is subject to
adjustment upon changes in the capitalization of the Company.
b) If the total number of shares subject to options granted exceeds the
number of shares available under the Plan, the Company will make a
pro rata allocation of the shares remaining available for option
grant in a practical and equitable manner. A written notice will be
distributed to each Associate stating the reduction of the number of
shares due to the adjustment and the corresponding reduction in the
Contribution.
c) The participant will have no interest or voting right in shares
covered by his or her option until such option has been exercised.
d) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant.
13. Administration.
The Board, or a committee appointed by the Board, will:
a) Supervise and administer the Plan and will have full power to adopt,
amend and rescind any rules deemed desirable and appropriate and
consistent for the administration of the Plan.
b) Construe and interpret the Plan in its sole and absolute discretion,
and make all other determinations necessary or advisable for the
administration of the Plan.
14. Designation of Beneficiary.
a) A participant may file a written designation of a beneficiary who is
to receive cash, if any, from the participant's account under the
Plan in the event of such participant's death.
b) Designation of a beneficiary may be changed by the participant at
any time by written notice.
c) In the event of the death of a participant and in the absence of a
beneficiary validly designated under the Plan who is living at the
time of such participant's death, the Company will deliver the cash
to the executor or administrator of the estate of the participant,
or if no such executor or administrator has been appointed (to the
knowledge of the Company), then the Company, in its discretion, may
deliver the cash to the spouse or to any one or more dependents or
relatives of the participant.
15. Transferability.
a) Neither Contributions credited to a participant's account nor any
rights with regard to an option to purchase shares under the Plan
may be assigned, transferred, pledged or otherwise disposed of in
any way (except as provided in Section 14).
b) Any such attempt at assignment, transfer, pledge or other
disposition shall be without effect, except that the Company may
treat such act as an election to withdraw funds in accordance with
Section 10.
16. Use of Funds.
All Contributions received or held by the Company under the Plan may be
used by the Company for any corporate purpose, and the Company shall not
be obligated to segregate such Contributions.
17. Reports.
An individual Account Statement will be given to participating Associates
promptly following each Exercise Date. The Account Statement will report:
a) amount of Contributions,
b) per share Purchase Price,
c) number of shares purchased, and
d) remaining cash balance (if any).
4
<PAGE>
18. Adjustments Upon Changes in Capitalization; Corporate Transactions.
a) In the event that a dividend shall be declared upon the Class A
Common Stock payable in shares of Class A Common Stock, the number
of shares of Class A Common Stock then subject to any option and the
number of shares of Class A Common Stock which may be purchased upon
the exercise of options granted under the Plan but not yet covered
by an option shall be adjusted by adding to each share the number of
shares which would be distributed thereon if such shares had been
outstanding on the date fixed for determining the stockholders
entitled to receive such stock dividend. In the event that the
outstanding shares of Class A Common Stock shall be changed into or
exchanged for a different number or kind of share of stock or other
securities of the Company or of another corporation, whether through
reorganization, recapitalization, stock split-up, combination of
shares, sale of assets, merger or consolidation in which the Company
is the surviving corporation, then, there shall be substituted for
each share of Class A Common Stock then subject to any option and
for each share of Class A Common Stock which may be purchased upon
the exercise of options granted under the Plan but not yet covered
by an option, the number and kind of shares of stock or other
securities into which each outstanding share of Class A Common Stock
shall be so changed or for which each such share shall be exchanged.
b) In the event that there shall be any change, other than as specified
in the first paragraph of Section 18(a) hereof, in the number or
kind of outstanding shares of Class A Common Stock, or of any stock
or other securities into which the Class A Common Stock shall have
been changed, or for which it shall have been exchanged, then, if
the Board shall, in it sole discretion, determine that such change
equitably requires an adjustment in the number or kind of shares
then subject to any option and the number or kind of shares
available for issuance in accordance with the provisions of the Plan
but not yet covered by an option, such adjustment shall be made by
the Board and shall be effective and binding for all purposes of the
Plan and of each option.
c) In the case of any substitution or adjustment in accordance with the
provisions of this Section 18, the option price in each option for
each share covered thereby prior to such substitution or adjustment
shall be the option price for all shares of stock or other
securities which shall have been substituted for such share or to
which such share shall have been adjusted in accordance with the
provisions of this Section 18.
d) No adjustment or substitution provided for this Section 18 shall
require the Company to issue a fractional share under any option.
e) In the event of dissolution or liquidation of the Company, or a
merger, reorganization or consolidation in which the Company is not
the surviving corporation, the Board, in its discretion, may
accelerate the exercise of each option and/or terminate the same
within a reasonable time thereafter.
19. Amendment or Termination.
The Board may at any time terminate or amend the Plan in whole or part.
Except as provided in this Section 19, no such termination may affect
options to purchase shares previously granted, nor may an amendment make
any change in any option which has been granted which adversely affects
the rights of any participant. In addition, to the extent necessary to
comply with Section 423 of the Code (or any successor rule or provision or
any applicable law or regulation), the Company shall obtain shareholder
approval in such manner as required.
20. Notices.
All notices or other communications by a participant to the Company under
or in connection with the Plan shall be deemed to have been duly given
when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
21. Conditions Upon Issuance of Shares.
a) Shares shall not be issued with respect to an option to purchase,
unless the exercise of such option and the issuance and delivery of
such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange
upon which the shares may then be listed.
b) As a condition to the exercise of an option, the Company may require
the person exercising such option to represent and warrant at the
time of any such exercise that the shares are being purchased only
for investment
5
<PAGE>
and without any present intention to sell or distribute such shares
if, in the opinion of counsel for the Company, such a representation
is required by any of the aforementioned applicable provisions of
law.
C) Each participant agrees, by entering the Plan, to promptly give the
Company notice of any disposition of shares purchased under the Plan
where such disposition occurs within two (2) years after the date of
grant of the option pursuant to which such shares were purchased.
22. Term of Plan; Effective Date.
The Plan shall become effective November 1, 1998. Continuance of the Plan
shall be subject to approval by the shareholders of the Company no later
than January 31, 1999. Such shareholder approval shall be obtained in the
manner required under the New York Business Corporation Law. The Plan
shall continue in effect for a term of ten (10) years unless sooner
terminated under Section 19.
6
Exhibit 5.1
January 8, 1999
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, DC 20549
Re: MSC Industrial Direct Co., Inc.
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") filed by MSC Industrial Direct Co., Inc. (the "Company"), a New York
corporation, with the Securities and Exchange Commission with respect to the
registration of up to an aggregate of 500,000 shares of the Company's Class A
common stock, par value $0.001 per share (the "Shares"), to be issued under the
Company's Associate Stock Purchase Plan.
We have made such examination as we have deemed necessary for the purpose of
this opinion. Based upon such examination, it is our opinion, that, when the
Registration Statement has become effective under the Securities Act of 1933,
and when the Shares to be issued are sold and paid for in the manner described
in the Registration Statement, the Shares will have been validly issued, fully
paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
ROSENMAN & COLIN LLP
By: /s/ Joseph Getraer
---------------------------
A Partner
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 registration statement of our report dated October
30, 1998 included in the MSC Industrial Direct Co., Inc. Form 10-K for the year
ended August 29, 1998 and to all references to our Firm included in this Form
S-8 registration statement.
ARTHUR ANDERSEN LLP
Melville, New York
January 8, 1999
