<PAGE>
As filed with the Securities and Exchange Commission on October 4, 1999
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, Chief Financial Officer and Secretary
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:
MICHAEL A. STONE, ESQ.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
Proposed maximum Amount of
Title of securities to Amount to be Proposed maximum offering aggregate offering registration
be registered registered price per share price(1) fee(1)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 400,000
value $.02 per share shares 400,000 shares at $10.61 $4,246,421.53 $1,180.51
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The aggregate offering price and the amount of the registration fee have
been computed in accordance with Rule 457(h) based in part upon the price
at which issued options may be exercised and in part (with respect to
issuable options) on the average of the high and low prices of the shares
reported in the consolidated reporting system on October 1, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in Part I (plan
information and registrant information) will be sent or given to employees as
specified by Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"). Such documents need not be filed with the Commission either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Pursuant to Rule 416 under the Securities Act, this Registration
Statement shall be deemed to cover any additional shares offered under the Plan
in order to reflect share splits, share dividends, mergers and other capital
changes.
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by Material Sciences Corporation (the
"Corporation") with the Securities and Exchange Commission (the "Commission")
are incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended February 28, 1999
(File No. 1-8803).
(b) Quarterly Report on Form 10-Q for the Fiscal Quarter ended May 31,
1999 (File No. 1-8803).
(c) Description of Common Stock contained in the Registration Statement of
the Corporation on Form 8-A filed October 23, 1984 (Registration No. 33-0828).
(d) The Company's Registration Statement on Form S-8 (Registration No.
333-15677) which was filed on November 6, 1996.
All reports and other documents subsequently filed by the Corporation
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such reports and 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 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.
-2-
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware,
as amended, permits indemnification of directors, officers, employees and agents
of corporations under certain conditions and subject to certain limitations.
The Certificate of Incorporation, as amended, and the Bylaws of the Corporation
provide for the indemnification of directors, officers, employees and agents of
the Corporation to the fullest extent permitted by Section 145.
The Corporation has obtained insurance policies under which its
directors and officers are insured, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the
defense of certain actions, suits or proceedings, and certain liabilities which
might be imposed as a result of certain actions, suits or proceedings, to which
they are parties by reason of being or having been such directors or officers.
The Corporation has entered into indemnification agreements with
certain of its officers and directors (and certain other persons serving as
director of another enterprise at the request of the Corporation) by which such
persons are indemnified against expenses and costs incurred in connection with
claims, suits or proceedings in accordance with and to the fullest extent
authorized by the General Corporation Law of the State of Delaware.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
(a) The Corporation 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 this 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 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 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 Corporation
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this 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.
(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.
-3-
<PAGE>
(b) The Corporation hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Corporation'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 herein, and the offering of such securities
at that time shall be deemed to be 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 Corporation pursuant to the foregoing provisions, or otherwise, the
Corporation has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Corporation of expenses
incurred or paid by a director, officer or controlling person of the Corporation
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 Corporation 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 Securities Act and will be governed by
the final adjudication of such issue.
-4-
<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 October
4, 1999.
MATERIAL SCIENCES CORPORATION
By: /s/ Gerald G. Nadig
----------------------------------------
Gerald G. Nadig
Chairman, 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 October 4, 1999.
Signature Capacity
--------- --------
/s/ Gerald G. Nadig Chairman, President and Chief Executive
- --------------------------- Officer and Director
Gerald G. Nadig (Principal Executive Officer)
/s/ James J. Waclawik, Sr. Vice President, Chief Financial Officer and
- --------------------------- Secretary (Principal Financial Officer)
James J. Waclawik, Sr.
/s/ David J. DeNeve Controller
- --------------------------- (Principal Accounting Officer)
David J. DeNeve
/s/ Jerome B. Cohen Director
- ---------------------------
Jerome B. Cohen
/s/ Eugene W. Emmerich Director
- ---------------------------
Eugene W. Emmerich
/s/ G. Robert Evans Director
- ---------------------------
G. Robert Evans
/s/ E. F. Heizer, Jr. Director
- ---------------------------
E. F. Heizer, Jr.
/s/ Howard B. Witt Director
- ---------------------------
Howard B. Witt
-5-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description of Document Numbered Page
- -------- ----------------------------------------------------------------------- ---------------
<S> <C> <C>
3.1 Restated Certificate of Incorporation of the Company, incorporated by
reference to the Company's Form 10-Q Quarterly Report for the Quarter
Ended August 31, 1997 (File No. 1-8803).
3.2 Certificate of Designation, Preferences and Rights of Series B Junior
Participating Preferred Stock, incorporated by reference to the Company's
Form 8-A filed on June 25, 1996 (File No. 1-8803).
3.3 Bylaws of the Company, as amended, incorporated by reference to the
Company's Current Report on Form 8-K, filed with the Commission on
June 17, 1998 (File No. 1-8803).
4.1 Material Sciences Corporation 1992 Omnibus Stock Awards Plan for Key
Employees, as amended.
5 Opinion of Kirkland & Ellis.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kirkland & Ellis (included in Exhibit 5).
</TABLE>
-6-
<PAGE>
EXHIBIT 4.1
-----------
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
(as determined by the committee) 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, 2,837,500 shares, provided, however, that to the extent any awards
hereunder expire unexercised or unpaid or are canceled, 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. For the purposes hereof, joint
ventures in which the Company owns an equity interest shall be considered a
subsidiary of the Company.
(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
- 1 -
<PAGE>
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.
(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.
- 2 -
<PAGE>
(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 maximum and
minimum levels during the performance period in order to evaluate the level
of payment to be made, if any.
- 3 -
<PAGE>
(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 4 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 4 shall be determined by the
Compensation Committee.
- 4 -
<PAGE>
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 shareowners 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
shareowners of the Company of a plan of complete liquidation, the restrictions
on the transfer, 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
5(e), 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
- 5 -
<PAGE>
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 5(b), 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 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 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 1, 1999, 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 shareowners before February 29,
2000.
- 6 -
<PAGE>
(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 shareowner 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.
- 7 -
<PAGE>
Exhibit 5
---------
[Kirkland & Ellis Letterhead]
To Call Writer Direct:
312-861-2000
October 4, 1999
Material Sciences Corporation
2200 East Pratt Boulevard
Elk Grove Village, Illinois 60007-5995
Re: Material Sciences Corporation Employee Stock Purchase Plan
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 400,000 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 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 when the certification for
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
<PAGE>
Material Sciences Corporation
October 4, 1999
Page 2
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 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 will
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 and 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.
<PAGE>
Material Sciences Corporation
October 4, 1999
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
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated April 22, 1999,
included and incorporated by reference in Material Sciences Corporation Form
10-K for the year ended February 28, 1999, and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
Chicago, Illinois
October 4, 1999
