<PAGE>
As filed with the Securities and Exchange Commission on August 18, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MATERIAL SCIENCES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 95-2673173
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2200 East Pratt Boulevard 60007
Elk Grove Village, Illinois (Zip Code)
(Address of Principal Executive Offices)
MATERIAL SCIENCES CORPORATION
1992 OMNIBUS STOCK AWARDS PLAN FOR KEY EMPLOYEES
(Full title of the plan)
JAMES J. WACLAWIK, SR.
Vice President and Chief Financial Officer
Material Sciences Corporation
2200 East Pratt Boulevard
Elk Grove Village, Illinois 60007
(Name and address of agent for service)
(847) 439-8270
(Telephone number, including area code, of agent for service)
Copy to:
JILL L. SUGAR, ESQ.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Title of securities to Amount to be Proposed maximum offering Proposed maximum Amount of
be registered registered price per share (1) aggregate offering price (1) registration fee (1)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 150,000
value $.02 per share shares $15.41 $2,311,500.00 $700.46
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The aggregate offering price and the amount of the registration fee have
been computed in accordance with Rule 457(h) based upon the average of the
high and low prices of the shares reported in the consolidated reporting
system on August 14, 1997.
<PAGE>
EXPLANATORY NOTE
Pursuant to General Instruction E for registration statements on Form
S-8, the contents of the Registration Statement on Form S-8 of Material Sciences
Corporation (the "Corporation"), relating to the 1992 Omnibus Stock Award Plan
for Key Employees (the "1992 Plan"), File No. 333-15679, filed with the
Securities and Exchange Commission (the "Commission") on November 6, 1996, are
incorporated herein by reference, as this Registration Statement relates to the
registration of additional shares with respect to the 1992 Plan.
For purposes of this Registration Statement, any statement contained
in a document incorporated or deemed to be incorporated herein by reference
shall be deemed to be modified or superseded to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated herein by reference modifies or supersedes such
statement in such document. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS
Pursuant to General Instruction E for registration statements on Form
S-8, only the following exhibits are required:
4.1 Certificate of Amendment of Certificate of Incorporation,
increasing the number of authorized shares of common stock from
20,000,000 to 40,000,000, filed August 12, 1997.
4.2 Certificate of Increase of Designated Shares of Common Stock to
the Certificate of Designation of the Corporation, increasing the
number of shares of common stock designated as Common Stock, par
value $.02 per share, from 20,000,000 to 40,000,000, filed
August 12, 1997.
4.3 1992 Omnibus Stock Awards Plan for Key Employees, as amended.
5 Opinion of Kirkland & Ellis.
23.1 Consent of Arthur Anderson, LLP.
23.2 Consent of Kirkland & Ellis (included in Exhibit 5).
24 Power of Attorney.
-2-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Corporation 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 Elk Grove Village, State of Illinois, on
August 18, 1997.
MATERIAL SCIENCES CORPORATION
By: /s/ Gerald G. Nadig
--------------------------------------
Gerald G. Nadig
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities indicated on August 18, 1997. Each person whose signature appears
below constitutes and appoints Gerald G. Nadig and James J. Waclawik, Sr. and
each of them as true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution for him or her and in his or her name, place and
stead, in any and all capacities to sign any and all amendments (including post-
effective amendments) to this Registration Statement, and to file the same with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, 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 he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their or substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
SIGNATURE CAPACITY
--------- --------
/s/ G. Robert Evans Chairman of the Board and Director
- --------------------------
G. Robert Evans
/s/ Gerald G. Nadig President, Chief Executive Officer and Director
- ---------------------------
Gerald G. Nadig (Principal Executive Officer)
/s/ James J. Waclawik, Sr. Vice President, Chief Financial Officer and
- ---------------------------
James J. Waclawik, Sr. Secretary (Principal Financial Officer)
/s/ David J. DeNeve Controller
- ---------------------------
David J. DeNeve (Principal Accounting Officer)
/s/ JAMes B. Cohen Director
- ---------------------------
Jerome B. Cohen
/s/ Roxanne J. Decyk Director
- ---------------------------
Roxanne J. Decyk
/s/ Eugene W. Emmerich Director
- ---------------------------
Eugene W. Emmerich
/s/ E.F. Heizer Director
- ---------------------------
E.F. Heizer, Jr.
-3-
<PAGE>
/s/ Irwin P. Pochter Director
- --------------------------
Irwin P. Pochter
/s/ Howard B. Witt Director
- ----------------------------------------------------
Howard B. Witt
-4-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description of Document Numbered Page
- ------- ----------------------------------------------------------------- -------------
<S> <C> <C>
4.1 Certificate of Amendment of Certificate of Incorporation, increasing
the number of authorized shares of common stock from 20,000,000
to 40,000,000, filed August 12, 1997.
4.2 Certificate of Increase of Designated Shares of Common Stock to the
Certificate of Designation of the Corporation, increasing the number
of shares of common stock designated as Common Stock, par value $.02
per share, from 20,000,000 to 40,000,000, filed August 12, 1997.
4.3 1992 Omnibus Stock Awards Plan for Key Employees, as amended.
5 Opinion of Kirkland & Ellis.
23.1 Consent of Arthur Anderson, LLP.
23.2 Consent of Kirkland & Ellis (included in Exhibit 5).
24 Power of Attorney.
</TABLE>
-5-
<PAGE>
EXHIBIT 4.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Material Sciences Corporation (the "Corporation"), a corporation organized
-----------
and existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That the first sentence of the Fourth Article of the Certificate of
Incorporation of the Corporation be deleted and replaced as follows:
"The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue of 50,000,000 shares, consisting
of:
10,000,000 shares of preferred stock of the par value of $1.00 per
share ('preferred stock'); and
40,000,000 shares of common stock of the par value of $.02 per share
(`common stock')."
SECOND: That the foregoing amendment was declared advisable and proposed to
the Corporation's stockholders by resolution adopted by the Corporation's Board
of Directors (the "Board") by the unanimous written consent of its members,
-----
filed with the minutes of the Board.
THIRD: That the foregoing amendment was considered and approved by the
affirmative vote of the holders of a majority of the outstanding stock of the
Corporation entitled to vote thereon, in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware, at the
annual meeting of stockholders held on July 17, 1997.
FOURTH: That the aforesaid amendment was duly adopted in accordance with
the applicable provision of Section 242 of the General Corporation Law of the
State of Delaware.
<PAGE>
IN WITNESS WHEREOF, said Material Sciences Corporation has caused this
certificate to be signed by James J. Waclawik, Sr., its Vice President, Chief
Financial Officer and Secretary this 5th day of August, 1997.
Material Sciences Corporation
By /s/ James J. Waclawik, Sr.
---------------------------
Vice President, Chief Financial Officer
and Secretary
<PAGE>
EXHIBIT 4.2
CERTIFICATE OF INCREASE OF DESIGNATED
SHARES OF COMMON STOCK
TO THE CERTIFICATE OF DESIGNATION, NUMBER, POWERS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL
AND OTHER SPECIAL RIGHTS AND THE QUALIFICATIONS
LIMITATIONS, RESTRICTIONS, AND OTHER DISTINGUISHING
CHARACTERISTICS OF COMMON STOCK OF
MATERIAL SCIENCES CORPORATED
* * * * *
Adopted in accordance with the provisions of (S)151(g) of the
General Corporation Law of the State of Delaware
* * * * *
The undersigned, being the duly elected and qualified Vice President,
Chief Financial Officer and Secretary of Material Sciences Corporation, a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "Corporation"), does hereby
certify as follows:
FIRST: The Certificate of Incorporation of the Corporation, as
amended, provides for the issuance of a series of Common Stock, par value $0.02
per share (the "Common Stock").
SECOND: The Board of Directors of the Corporation has adopted a
resolution authorizing an increase in the number of shares designated as Common
Stock from 20,000,000 to 40,000,000.
IN WITNESS WHEREOF, the undersigned does hereby certify under
penalties of perjury that this Certificate of increase is the act and deed of
the undersigned and the facts stated herein are true and accordingly has
hereunto set his hand this 5th day of August, 1997.
MATERIAL SCIENCES CORPORATION,
a Delaware corporation
By: /s/ James J. Waclawik, Sr.
---------------------------------------
James J. Waclawik, Sr.
Vice President, Chief Financial Officer
and Secretary
<PAGE>
Exhibit 4.3
MATERIAL SCIENCES CORPORATION
1992 OMNIBUS STOCK AWARDS PLAN
FOR KEY EMPLOYEES
1. PURPOSE. The purpose of this 1992 Omnibus Stock Awards Plan for Key
Employees (this "Plan") is to provide incentives to management and other
key employees of Material Sciences Corporation (the "Company") and its
subsidiaries through rewards based upon the ownership and performance of
the common stock of the Company, $.02 par value per share ("common stock").
2. LIMITATIONS ON SHARES TO BE ISSUED. The number of shares of common stock
with respect to which awards may be granted under this Plan and which may
be issued upon the exercise or payment thereof shall not exceed, in the
aggregate, 2,437,500 shares, provided, however, that to the extent any
awards hereunder expire unexercised or unpaid or are cancelled, terminated
or forfeited in any manner without the issuance of shares of common stock
thereunder, such shares shall again be available under this Plan. Shares
of common stock issued under this Plan may be authorized and unissued
shares of common stock, treasury stock, or a combination thereof, as the
Compensation Committee (the "Compensation Committee") of the Board of
Directors of the Company (the "Board") shall determine.
3. AWARDS. The Compensation Committee may grant to those persons who it deems
to be key employees of the Company or any subsidiary of the Company
(collectively, the "participants"), in accordance with this Section and
the other provisions of this Plan, stock options, stock appreciation rights
("SARs"), restricted stock and other awards.
(A) OPTIONS.
(i) Options granted under this Plan may be either incentive stock
options ("ISOs") which qualify under Section 422 of the Internal
Revenue Code of 1986, as amended, or options which do not qualify
under such Section ("non-qualified options"), or in such other form,
consistent with this Plan, as the Compensation Committee may
determine. Each option granted under this Plan shall be evidenced by
a written agreement between the Company and the optionee, and such
written agreement shall specify whether such option is intended to be
an ISO or a non-qualified option. Each option shall be exercisable
immediately in full or shall become exercisable in installments (based
on the passage of time, achievement of performance targets or both as
determined by the Compensation Committee) over the option period in
such percentages of the total number of shares covered by the option
as shall be determined by the Compensation Committee and stated in the
agreement evidencing such option.
(ii) The per share option price shall be a price determined by the
Compensation Committee and specified in the option agreement, provided
that the per share option price with respect to any options granted
under this Plan (including, without limitation, any ISO's) shall not
be less than 100% of the fair market value (determined in accordance
with procedures established by the Compensation Committee, the "fair
market value") of a share of common stock on the date the option is
granted.
(iii) Options shall be exercised in whole or in part by written
notice to the Company (to the attention of the Secretary of the
Company) and payment in full of the option price. Payment of the
option price may be made, at the discretion of the optionee, and to
the extent permitted by the Compensation Committee, (A) in cash
(including check, bank draft, or money order), (B) in common stock
(valued at the fair market value thereof on the date of exercise), (C)
by a combination of cash and common stock or (D) with any other
consideration.
<PAGE>
(B) SAR
(i) An SAR shall entitle its holder to receive from the Company, at
the time of exercise of such right, an amount equal to the excess of
the fair market value (at the date of exercise) of a share of common
stock over a specified price fixed by the Compensation Committee
multiplied by the number of shares of common stock as to which the
holder is exercising the SAR. SARs may be in tandem with any
previously or contemporaneously granted option or independent of any
option. The specified price of a tandem SAR shall be the option price
of the related option. The amount payable may be paid by the Company
in common stock (valued at its fair market value on the date of
exercise), cash or a combination thereof, as the Compensation
Committee may determine, which determination shall be made after
considering any preference expressed by the holder.
(ii) An SAR shall be exercised by written notice to the Company (to
the attention of the Secretary of the Company) at any time prior to
its stated expiration. To the extent a tandem SAR is exercised, the
related option will be cancelled and, to the extent the related option
is exercised, the tandem SAR will be cancelled.
(c) INCENTIVE AWARDS OF RESTRICTED STOCK.
(i) Shares of common stock may be awarded to participants, subject
to this paragraph 3(c) and such other terms and conditions as the
Compensation Committee may prescribe (such shares being called
"restricted stock"). Each certificate for restricted stock shall be
registered in the name of the participant and deposited, together with
a stock power endorsed in blank, with the Company.
(ii) There shall be established for each restricted stock award a
restriction period (the "restriction period") of such length as shall
be determined by the Compensation Committee. Shares of restricted
stock may not be sold, assigned, transferred, pledged or otherwise
encumbered, except as hereinafter provided, during the restriction
period. Except for such restrictions on transfer and such other
restrictions as the Compensation Committee may impose, the participant
shall have all the rights of a holder of common stock as to such
restricted stock. The Compensation Committee, in its sole discretion,
may permit or require the payment of cash dividends to be deferred
and, if the Compensation Committee so determines, reinvested in
additional restricted stock or otherwise invested. At the expiration
of the restriction period, the Corporation shall redeliver to the
participant (or the participant's legal representative or designated
beneficiary) the certificates deposited pursuant to paragraph 3(c)i).
(iii) Except as provided by the Compensation Committee at the time
of grant or otherwise, upon a termination of employment for any reason
during the restriction period all shares of common stock still subject
to restriction shall be forfeited by the participant.
(d) OTHER AWARDS.
(i) Other awards, including, without limitation, performance
shares, convertible debentures, other convertible securities and other
forms of awards measured in whole or in part by the value of common
stock, the performance of the participant or the performance of the
Company, may be granted under this Plan. Such awards may be payable in
common stock, cash or both, and shall be subject to such restrictions
and conditions, as the Compensation Committee shall determine. At the
time of any such award, the Compensation Committee shall, if
applicable, determine a performance period and performance goals to be
achieved during the performance period, subject to such later
revisions as the Compensation Committee shall deem appropriate to
reflect significant unforeseen events such as changes in laws,
regulations or accounting practices, unusual or non-recurring items or
occurrences. Following the conclusion of each performance period, the
Compensation Committee shall determine the extent to which performance
goals have been attained or a degree of achievement between
-2-
<PAGE>
maximum and minimum levels during the performance period in order to
evaluate the level of payment to be made, if any.
(ii) A participant may elect to defer all or a portion of any such
award in accordance with procedures established by the Compensation
Committee. Deferred amounts will be subject to such terms and
conditions and shall accrue such yield thereon (which may be measured
by the fair market value of the common stock and dividends thereon) as
the Compensation Committee may determine. Payment of deferred amounts
may be in cash, common stock or a combination thereof, as the
Compensation Committee may determine. Deferred amounts shall be
considered an award under this Plan. The Compensation Committee may
establish a trust to hold deferred amounts or any portion thereof for
the benefit of participants.
4. ADJUSTMENTS FOR CHANGES IN CAPITALIZATION OR CORPORATE REORGANIZATIONS.
Appropriate adjustments shall be made by the Compensation Committee in the
maximum number and kind of shares of common stock to be issued under this
Plan, and in the number and kind of shares of common stock that are the
subject of any option, SAR, restricted stock or other award under this
Plan, to give effect to any stock splits, stock dividends and other
relevant changes in capitalization occurring after the effective date of
this Plan. If the Company shall effect a merger, consolidation or other
reorganization, pursuant to which the outstanding shares of common stock
shall be exchanged for other shares or securities of the Company or of
another corporation which is a party to such merger, consolidation or other
reorganization, the Company shall use its best efforts to provide in any
agreement or plan which it enters into or adopts to effect any such merger,
consolidation or other reorganization that: (1) any holder of restricted
stock issued pursuant to this Plan shall receive in such transaction,
subject to substantially the same restrictions in transferability as apply
to such restricted stock, the kind and number of shares or other securities
of the Company or such other corporation which is issuable to the owner of
a like number of unrestricted shares of common stock; (2) any optionee
under this Plan shall have the right (a) to purchase, at the aggregate
option price provided for in his option agreement and on the same terms and
conditions, the kind and number of shares or other securities of the
Company or such other corporation which would have been issuable to him in
respect of the number of shares of common stock which were subject to such
option immediately prior to the effective date of such merger,
consolidation or other reorganization if such shares had been then owned by
him, and (b) to exercise SARs with respect to such shares in lieu of such
purchase to the extent such optionee had such rights with respect to the
options outstanding immediately prior to the effective date of such merger,
consolidation or other reorganization; and (3) any holder of any other
award under this Plan shall receive in such transaction such kind and
number of shares or other securities of the Company or such other
corporation as the Compensation Committee deems equitable and appropriate.
Any adjustment with respect to options required by this Section shall be
effected in such manner that the difference between the aggregate fair
market value of the shares or other securities subject to the options
immediately after giving effect to such adjustment and the aggregate option
price of such shares or other securities shall be substantially equal to
(but shall not be more than) the difference between the aggregate fair
market value of the shares subject to such options immediately prior to
such adjustment and the aggregate option price of such shares. Any
adjustments made under this Section shall be determined by the
Compensation Committee.
If the provision in the first paragraph above, insofar as it related to
options or SARs, has not been made with respect to any of the options or
SARs issued pursuant to this Plan by the date ten days prior to the
scheduled effective date of such merger, consolidation or other
reorganization, then the options and SARs outstanding under this Plan shall
thereupon become exercisable in full. If the provision for restricted
stock described in the first paragraph above has not been made with respect
to any of the restricted stock issued pursuant to this Plan by the date ten
days prior to the scheduled effective date of such merger, consolidation or
other reorganization, then the restrictions on the transfer, assignment,
pledge or other encumbrance of such restricted stock as to which such
provision has not been made shall thereupon lapse as of such date.
Upon the approval by the shareholders of the Company of a merger,
consolidation or other reorganization pursuant to which the outstanding
shares of common stock are to be exchanged for cash, or upon the adoption
by the shareholders of the Company of a plan of complete liquidation, the
restrictions on the transfer,
-3-
<PAGE>
assignment, pledge or other encumbrance of restricted stock issued
pursuant to this Plan shall thereupon lapse, and all options outstanding
under this Plan shall thereupon become exercisable in full.
5. MISCELLANEOUS PROVISIONS.
(A) ADMINISTRATION. This Plan shall be administered by the Compensation
Committee. Subject to the limitations of this Plan, the Compensation
Committee shall have the sole and complete authority: (i) to select
participants in this Plan, (ii) to make awards in such forms and
amounts as it shall determine, (iii) to impose such limitations,
restrictions and conditions upon such awards as it shall deem
appropriate, (iv) to interpret this Plan and to adopt, amend and
rescind administrative guidelines and other rules and regulations
relating to this Plan, (v) to correct any defect or omission or to
reconcile any inconsistency in this Plan or in any award granted
hereunder and (vi) to make all other determinations and to take all
other actions necessary or advisable for the implementation and
administration of this Plan. The Compensation Committee's
determinations on matters within its authority shall be conclusive and
binding upon the Company and all other persons. All expenses
associated with this Plan shall be borne by the Company, subject to
such allocation to its subsidiaries and operating units as it deems
appropriate. The Compensation Committee may, to the extent that any
such action will not prevent this Plan from complying with Rule 16b-3
of the Securities and Exchange Act of 1934, as amended ("Rule 16b-3"),
delegate any of its authority hereunder to such person as it deems
appropriate. The Compensation Committee may also establish a
"cashless exercise" program with a third party brokerage firm pursuant
to which, at the discretion of the Compensation Committee, options
hereunder may be exercised, subject to any restrictions imposed by the
Compensation Committee.
(B) NON-TRANSFERABILITY. Subject to the provisions of paragraph , no
award under this Plan, and no interest therein, shall be transferable
by the participant otherwise than by will or the laws of descent and
distribution. All awards shall be exercisable or received during the
participant's lifetime only by the participant or the participant's
legal representative. Any purported transfer contrary to this
provision will nullify the award. Awards under this Plan shall not be
subject to execution, attachment or other process, and no person shall
be entitled to exercise any rights of a participant or possess any
rights of a participant by virtue of any attempted execution,
attachment or other process.
(C) TAX WITHHOLDING. The Compensation Committee shall have the power to
withhold, or require a participant to remit to the Company, an amount
sufficient to satisfy any withholding or other tax due with respect to
any amount payable and/or shares of common stock issuable under this
Plan, and the Compensation Committee may defer such payment or
issuance unless indemnified to its satisfaction. Subject to the
consent of the Compensation Committee, a participant may make an
irrevocable election to have shares of common stock otherwise issuable
under an award withheld, tender back to the Company shares of common
stock received pursuant to an award or deliver to the Company
previously-acquired shares of common stock having a fair market value
sufficient to satisfy all or part of the participant's estimated tax
obligations associated with the transaction. Such election must be
made by a participant prior to the date on which the relevant tax
obligation arises. The Compensation Committee may disapprove of any
election and may limit, suspend or terminate the right to make such
elections.
(D) LISTING AND LEGAL COMPLIANCE. The Compensation Committee may suspend
the exercise or payment of any award so long as it determines that
securities exchange listing or registration or qualification under any
securities laws is required in connection therewith and has not been
completed on terms acceptable to the Compensation Committee.
(E) BENEFICIARY DESIGNATION. Subject to paragraph , participants may
name, from time to time, beneficiaries (who may be named contingently
or successively) to whom benefits under this Plan are to be paid in
the event of their death before they receive any or all of such
benefit. Each designation will revoke all prior designations by the
same participant, shall be in a form prescribed by the
-4-
<PAGE>
Compensation Committee, and will be effective only when filed by the
participant in writing with the Compensation Committee during the
participant's lifetime. In the absence of any such designation,
benefits remaining unpaid or unexercised at the participant's death
shall be paid to or exercised by the participant's estate.
(F) RIGHTS OF PARTICIPANTS. Nothing in this Plan shall interfere with or
limit in any way the right of the Company to terminate any
participant's employment at any time, nor confer upon any participant
any right to continue in the employ of the Company for any period of
time or to continue his or her present or any other rate of
compensation. No employee shall have a right to be selected as a
participant, or, having been so selected, to be selected again as a
participant.
(G) EFFECTIVE DATE AND TERM OF PLAN. This Plan as amended shall be
effective as of March 2, 1995, provided, however, that this Plan as
amended shall cease to be effective and any awards granted hereunder
and permitted only as a consequence of the amendments hereto shall
become null and void if this Plan as amended is not approved by the
Company's stockholders before February 28, 1996.
(H) AMENDMENT, SUSPENSION AND TERMINATION OF PLAN. The Board or the
Compensation Committee may suspend or terminate this Plan or any
portion hereof at any time and may amend it from time to time in such
respects as the Board or the Compensation Committee may deem
advisable; provided, however, that no such amendment shall be made,
without stockholder approval to the extent such approval is required
by law, agreement or the rules of any exchange upon which the common
stock is listed. No such amendment, suspension or termination shall
impair the rights of participants under outstanding awards without the
consent of the participants affected thereby or make any change that
would disqualify this Plan, or any other plan of the Company intended
to be so qualified, from the exemption provided by Rule 16b-3. The
Compensation Committee may amend or modify any award in any manner to
the extent that the Compensation Committee would have had the
authority under this Plan to initially grant such award. No such
amendment or modification shall impair the rights of any participant
under any award without the consent of such participant.
(I) COMPLIANCE WITH 16B-3. It is the intent of the Company that this Plan
comply in all respects with Rule 16b-3, that any ambiguities or
inconsistencies in the construction of this Plan be interpreted to
give effect to such intention and that if any provision of the Plan is
found not to be in compliance with Rule 16b-3, that such provision
shall be deemed null and void to the extent required to permit this
Plan to comply with Rule 16b-3.
-5-
<PAGE>
Exhibit 5
[Kirkland & Ellis Letterhead]
To Call Writer Direct:
312-861-2000
August 18, 1997
Material Sciences Corporation
2200 East Pratt Boulevard
Elk Grove Village, Illinois 60007
Re: Material Sciences Corporation 1992 Omnibus Stock Awards Plan
for Key Employees
Registration Statement on Form S-8
Ladies and Gentlemen:
We are issuing this letter in our capacity as special legal counsel to
Material Sciences Corporation, a Delaware corporation (the "Company"), in
connection with the proposed registration by the Company of 150,000 shares (the
"Shares") of its Common Stock, par value $.02 per share, pursuant to a
Registration Statement on Form S-8, filed with the Securities and Exchange
Commission (the "Commission") on the date of this letter under the Securities
Act of 1933, as amended (the "Securities Act"). This opinion letter is being
delivered in response to Section 601(5) of Regulation S-K of the Securities and
Exchange Commission, which requires the filing of an opinion of counsel with
respect to the legality of the securities being registered on Form S-8 under the
Securities Act. The Shares are to be issued and sold by the Company to certain
employees of the Company and its participating subsidiaries pursuant to the
Material Sciences Corporation 1992 Omnibus Stock Awards Plan for Key Employees
(the "Plan").
Subject to the assumptions, qualifications, exclusions and other
limitations which are identified in this letter, we advise you that in our
opinion the Shares are duly authorized and, when the Shares have been duly
issued in accordance with the terms of the Plan and the respective stock award
or option agreement and when the Shares are duly countersigned by the Company's
registrar, and upon receipt by the Company of the consideration to be paid
therefor, the Shares will be validly issued, fully paid and nonassessable.
We have assumed that each document we have reviewed for purposes of
this letter is accurate and complete, that each such document that purports to
be an original is authentic, that each such document that is a copy conforms to
an authentic original, and that all signatures on each such document are
genuine. We have assumed that all documents we have reviewed have been duly
authorized, executed and delivered by the respective parties thereto, the
respective parties thereto had the corporate power and authority to execute,
deliver and perform
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Material Sciences Corporation
August 18, 1997
Page 2
such documents, the execution, delivery and performance of such documents by
each party thereto did not and will not violate the charter or bylaws of such
party or any contract to which such party is bound and comply with all laws,
governmental rules and regulations applicable to each such party, and that such
documents constitute the valid and binding obligation of such party, enforceable
against such party in accordance with their respective terms.
In preparing this letter we have relied without independent
verification upon: (i) information contained in a certificate obtained from the
Secretary of State of the State of Delaware; (ii) factual information provided
to us by the Company or its representatives; and (iii) factual information we
have obtained from such other sources as we have deemed reasonable. We have
assumed that there has been no relevant change or development between the dates
as of which the information cited in the preceding sentence was given and the
date of this letter and that the information upon which we have relied is
accurate and does not omit disclosures necessary to prevent such information
from being misleading. In addition, we have not undertaken any investigation to
determine the facts upon which the advice in this letter is based.
Our advice on every legal issue addressed in this letter is based
exclusively on the General Corporation Law of the State of Delaware, the
internal law of the State of Illinois or the federal law of the United States,
and represents our opinion as to how that issue would be resolved were it to be
considered by the highest court in the jurisdiction which enacted such law.
Without limiting the generality of the preceding sentence, we express no opinion
with respect to compliance with any state securities (or "Blue Sky") laws or
regulations. The manner in which any particular issue would be treated in any
actual court case would depend in part on facts and circumstances particular to
the case, and this letter is not intended to guarantee the outcome of any legal
dispute which may arise in the future.
We hereby consent to the filing of this letter with the Commission as
Exhibit 5 to the Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission.
This letter speaks as of the time of its delivery on the date it
bears. We do not assume any obligation to provide you with any subsequent
opinion or advice by reason of any fact about which we did not have actual
knowledge at that time, by reason of any change subsequent to that time in any
law covered by any of our opinions, or for any other reason.
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Material Sciences Corporation
August 18, 1997
Page 3
You may rely upon this letter only for the purpose described in the
initial paragraph of this letter in response to which it has been delivered.
Without our written consent: (i) no person other than you may rely on this
letter for any purpose; (ii) this letter may not be cited or quoted in any
document or communication which might encourage reliance upon this letter by any
person or for any purpose excluded by the restrictions in this paragraph; and
(iii) copies of this letter may not be furnished to anyone for purposes of
encouraging such reliance.
Very truly yours,
/s/ KIRKLAND & ELLIS
KIRKLAND & ELLIS
<PAGE>
Exhibit 23.1
As independent public accountants, we hereby consent in the incorporation by
reference in this registration statement of our reports dated April 29, 1997
included in Material Sciences Corporation's Form 10-K for the year ended
February 28, 1997 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Chicago, Illinois
August 18, 1997
