-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Bx7ZPrrLN8jjuJjdVZzmZfDadzIXpNkERZDEDXv9YlWx8To8QChJYHrrTSnhapEN nb1kJU+9d8u0edI8BYUjIQ== 0000950131-97-005138.txt : 19970820 0000950131-97-005138.hdr.sgml : 19970820 ACCESSION NUMBER: 0000950131-97-005138 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970819 EFFECTIVENESS DATE: 19970819 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: MATERIAL SCIENCES CORP CENTRAL INDEX KEY: 0000755003 STANDARD INDUSTRIAL CLASSIFICATION: COATING, ENGRAVING & ALLIED SERVICES [3470] IRS NUMBER: 952673173 STATE OF INCORPORATION: DE FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-33897 FILM NUMBER: 97666072 BUSINESS ADDRESS: STREET 1: 2300 E PRATT BLVD CITY: ELK GROVE VILLAGE STATE: IL ZIP: 60007 BUSINESS PHONE: 7084398270 S-8 1 FORM S-8 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 EMPLOYEE STOCK PURCHASE PLAN (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
- -------------------------------------------------------------------------------------------------------------------------- Title of securities to Amount to be Proposed maximum offering Proposed maximum Amount of be registered registered price per share (1) aggregate offering fee (1) registration price (1) - -------------------------------------------------------------------------------------------------------------------------- Common Stock, par 600,000 value $.02 per share shares $15.41 $9,246,000.00 $2,801.82 - --------------------------------------------------------------------------------------------------------------------------
(1) The aggregate offering price and the amount of the registration fee have been computed in accordance with Rule 457(h) based on the average of the high and low prices of a share of Common Stock reported in the consolidated reporting system on August 14, 1997. 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 Securities and Exchange Commission (the ACommission@) 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 stock splits, stock dividends or similar transactions. ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. The following documents filed by Material Sciences Corporation (the "Corporation") with the Commission are incorporated herein by reference: (a) Annual Report on Form 10-K for the fiscal year ended February 28, 1997 (File No. 1-8803). (b) Quarterly Report on Form 10-Q for the fiscal quarter ended May 31, 1997 (File No. 1-8803); Annual Report on Form 10-K/A for the fiscal year ended February 29, 1996 (File No. 1-8803); Current Report on Form 8-K filed on April 30, 1997 (File No. 1-8803); and Current Report on Form 8-K filed on April 7, 1997 (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). 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. The Corporation will provide without charge to each person to whom a copy of the Section 10(a) prospectus has been delivered, on the written or oral request of such person, a copy of any or all of the documents referred to above which have been or may be incorporated in the Section 10(a) prospectus by reference other than exhibits to such documents. Written requests or requests by telephone for such copies should be directed to: James J. Waclawik, Sr., Vice President and Chief Financial Officer, Material Sciences Corporation, 2200 East Pratt Boulevard, Elk Grove Village, IL 60007 (telephone (847) 439-8270). ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. -2- ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. 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. Reference is made to the Exhibit Index attached hereto. ITEM 9. UNDERTAKINGS. (a) The undersigned 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- (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The 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- 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/ Jerome 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, Jr. Director - -------------------------- E.F. Heizer, Jr. -5- /s/ Irwin P. Pochter Director - -------------------------- Irwin P. Pochter /s/ Howard B. Witt Director - -------------------------- Howard B. Witt -6- EXHIBIT INDEX
Exhibit Sequentially Number Description of Document Numbered Page - ------- ---------------------------------------------------------------------- ------------- 4.1 Certificate of Incorporation of the Corporation, as amended, incorporated by reference to the Corporation's Registration Statement on Form S-1, which was effective on November 27, 1984 (Registration No. 2-93414). 4.2 Amendment to Certificate of Incorporation of the Corporation, incorporated by reference to the Corporation's Registration Statement on Form S-1, filed on October 11, 1985 (Registration No. 33-00828). 4.3 Amendment to Certificate of Incorporation of the Corporation, incorporated by reference to the Corporation's Form 8-A, filed on June 17, 1986 (File No. 1-8803). 4.4 Amendment to Certificate of Incorporation of the Corporation, incorporated by reference to the Corporation's Form 8-A, filed on June 25, 1996 (File No. 1-8803). 4.5 Amended to Certificate of Incorporation of the Corporation, incorporated by reference to the Corporation's Registration Statement on Form S-8 (Registration No. 333-33885) 4.6 Certificate of Increase of Designated Shares of Common Stock to the Certificate of Designation of the Corporation, incorporated by reference to the Corporation's Registration Statement on Form S-8 (Registration No. 333-33885). 4.7 Bylaws of the Corporation, incorporated by reference to the Corporation's Form 10-K Annual Report for the Fiscal Year Ended February, 1991 (File No. 1-8803). 4.8 Material Sciences Corporation Employee Stock Purchase Plan, as amended. 5 Opinion of Kirkland & Ellis. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Kirkland & Ellis (included in Exhibit 5). 24 Power of Attorney (included on the signature page hereto).
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EX-4.8 2 EMPLOYEE STOCK PURCHASE PLAN EXHIBIT 4.8 MATERIAL SCIENCES CORPORATION EMPLOYEE STOCK PURCHASE PLAN ______________________________________________________________ 1. Purpose: The Purpose of this Employee Stock Purchase Plan (the "Plan") is to provide employees of Material Sciences Corporation (the "Company") and its subsidiaries (as defined in Section 14 hereof) (collectively, the "Participating Companies") with added incentive to continue in the employment of the Participating Companies and to encourage increased efforts to promote the best interests of the Participating Companies by permitting eligible employees to purchase shares of common stock of the Company (the "Stock"), having a par value of $.02 per share, at a price less than the then current market price thereof. The Plan is intended to qualify as an "employee stock purchase plan" under Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"). 2. Eligibility: Participation under the Plan shall be open to all active employees of the Participating Companies except (a) employees whose customary employment by the Participating Companies is 20 hours or less per week, and (b) employees whose customary employment by the Participating Companies is for not more than five months in any calendar year. No right to purchase Stock shall accrue under the Plan in favor of any person who is not an eligible employee, and no eligible employee shall acquire such right to purchase Stock (i) if, immediately after receiving such right, such employee would own 5% or more of the total combined voting power or value of all classes of stock of the Company or any subsidiary corporation (as defined in Section 424 of the Code), taking into account in determining stock ownership any stock attributable to such employee under Section 424 of the Code; or (ii) if such purchase would permit such employee's rights to purchase stock under all employee stock purchase plans from time to time in effect of the Company and its subsidiary corporations (as so defined) to accrue at a rate which exceeds $25,000 of fair market value of such stock for each calendar year, all determined in the manner provided by Section 423 of the Code. 3. Effective date of Plan: The Plan shall become effective on such date as may be specified by the Board of Directors of the Company (the "Board"), provided that in no event shall the Plan become effective unless within 12 months of the date of its adoption by the Board it has been approved at a duly called meeting of the shareholders of the Company. 4. Participation and Purchase of Shares: Each eligible employee shall be entitled to become a participant in the Plan (a "participant") during either of two one-month enrollment periods in each fiscal year of the Company. Unless otherwise determined by the Board or a committee of directors not eligible to participate in the Plan (the "Committee") designated by the Board to administer the Plan, such enrollment periods shall be the months of February and August. To become a participant, an eligible employee shall execute and deliver to his employer a payroll deduction authorization form (the "Authorization") which shall become effective on the first day following the end of the enrollment period. Each Authorization shall direct that payroll deductions be made by the employee's employer for each payroll period ending during the period of such employee's participation in the Plan and shall specify the amount of such payroll deduction as a percentage of the participant's gross earnings from the Participating Companies for such period (before withholding or other deductions) that is not less than two percent or greater than six percent. Payroll deductions shall be made for each participant in accordance with his Authorization until his participation in the Plan terminates, his Authorization is revised or the Plan terminates, all as hereinafter provided. During any enrollment period, a participant may change the amount of his payroll deductions. No other changes shall be permitted except that a participant may elect to terminate his participation in the Plan as hereinafter provided. All such permitted changes shall be effected by filing a new Authorization in the manner described in the first paragraph of Section 4. 1 Payroll deductions made pursuant to the Plan shall be credited to the purchase account of the participant in question. At the end of each purchase period (as hereinafter defined), the amount in each participant's account, including any interest thereon as provided in Section 7 hereof, shall be applied to the purchase of the maximum number of whole shares of Stock, which can be purchased with such amount, determined by dividing such amount by the Purchase Price (as hereinafter defined) for such purchase period. Any amount remaining in the purchase account after the purchase of such shares shall remain credited to such account and shall be carried over to the following purchase period. The first purchase period under the Plan shall commence on March 1, 1985 and shall end on August 31, 1985. So long as the Plan remains in effect, new 6 month purchase periods shall commence on each succeeding September 1 and March 1. 5. Purchase Price: The purchase price (the "Purchase Price") per share of Stock hereunder for any purchase period shall be 85% of the lesser of (a) the fair market value of a share of Stock on the first day of such a purchase period, and (b) the fair market value of a share of Stock on the last day of such purchase period, provided that if such percentage results in a fraction of one cent, the Purchase Price shall be increased to the next higher full cent. 6. Issuance of Shares and Delivery of Certificates: To the extent that the Company's obligations hereunder are to be satisfied by the issuance of Stock, shares which each participant has purchased for each purchase period shall be issued at the time they are purchased. Certificates representing the shares purchased shall be delivered to the participant within a reasonable time after the end of each purchase period. Notwithstanding any other provision of the Plan, each participant who is an "officer" or "director" of the Company (as such terms are used in Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended (the "1934 Act")) shall, prior to such participant's receipt of any certificates representing shares, either (i) provide a written representation to the Company that the shares so distributed will be held by such participant for at least six months prior to sale or other disposition or (ii) terminate his participation in the Plan for a period of at least six months in accordance with Section 8 hereof. Notwithstanding the foregoing or any other provision of the Plan, each participant who is an officer or director of the Company (as such terms are used in Rule 16b-3 promulgated under the 1934 Act) may not sell or dispose of any shares of Stock until at least six months after the last day of the purchase period with respect to such shares. 7. Interest on Purchase Accounts: Interest shall accrue during each purchase period with respect to amounts credited from time to time to a purchase account of a participant at a rate equal to the rate paid on the first business day of such purchase period on Certificate of Deposits having ninety-day maturities. After the close of each purchase period, a report will be made to each participant stating the entries made to his purchase account, including the interest accrued and the number of shares purchased and the applicable Purchase Price. 8. Termination of Participation: A participant may at any time elect to terminate his participation in the Plan, except that no such termination shall be effective as to any purchase period unless such election is received by one of the Participating Companies in writing prior to the last business day of such period. A participant may also at any time request in writing payment to him of the full amount to his credit in his purchase account, including any interest thereon as provided in Section 7 hereof, without thereby terminating his participation of the Plan, provided that no such request shall be effective as to any purchase period unless received prior to the last business day of such period. Upon any such termination or request, the employer of such participant shall promptly refund to him the amount to his credit in his purchase account. Notwithstanding any other provision of the Plan, if an officer or director of the Company (as such terms are used in Rule 16b-3 promulgated under the 1934 Act) terminates his participation in the Plan, he shall not be entitled to again become a participant in the Plan until the first enrollment period which ends on or after six months after such termination becomes effective. In the event any participant shall die, terminate his employment with the Participating Companies for any reason or otherwise cease to be eligible to participate in the Plan, his participation in the Plan shall immediately terminate, and the amount to his credit in his purchase account, including any interest thereon as provided in Section 7 hereof, on the date of such termination, together with certificate(s) for the full shares of stock held for his benefit and a cash payment in lieu of any fractional share, shall be returned to him or his legal representatives promptly. 2 9. Termination or Amendment of the Plan: The Company, by action of the Board, may terminate the Plan as of the beginning of any purchase period. Notice of termination shall be given to all participants, but any failure to give such notice shall not impair the effectiveness of the termination. Without any action being required, the Plan will terminate whenever the maximum number of shares of Stock to be sold under the Plan (as hereinafter provided in Section 13) has been purchased, but such termination shall not impair the rights of the participants to shares purchased pursuant to the Plan on or prior to the date of such termination. If at any time, the number of shares remaining available for purchase under the Plan is not sufficient to satisfy all then outstanding purchase rights, the Board or the Committee may determine an equitable basis of apportioning available shares among all participants. The Board may amend the Plan from time to time in any respect in order to meet changes in legal requirements or for any other reason; PROVIDED, HOWEVER, that no such amendment shall (a) materially adversely affect any purchase rights outstanding under the Plan during the purchase period in which such amendment is to be effected, (b) increase the maximum number of shares of Stock which may be purchased under the Plan, (c) decrease the Purchase Price of the Stock for any purchase period below the amounts set forth in paragraph 5 of this Plan, or (d) adversely affect the qualification of the Plan under Section 423 of the Code. Upon termination of the Plan, the respective amounts to the credit of the participants in their purchase accounts shall be returned to them promptly. 10. Non-Transferability: Rights acquired under the Plan are not transferable and may be exercised only by a participant. 11. Shareholder's Rights: No eligible employee or participant shall by reason of the Plan have any rights of a shareholder of the Company until and to the extent he shall acquire shares of Stock as herein provided. 12. Administration of the Plan: The Plan shall be administered so as to ensure that all participants have the same rights and privileges as are provided by Section 423 (b)(5) of the Code. Members of the Committee may be appointed from time to time by the Board and shall be subject to removal by the Board. The decision of a majority in number of the members of the Committee in office at the time shall be deemed to be the decision of the Committee. The Board or the Committee, from time to time, may approve the forms of any documents or writings provided for in the Plan, may adopt, amend and rescind rules and regulations not inconsistent with the Plan for carrying out the Plan and may construe the Plan. The Board or the Committee may delegate the responsibility for maintaining all or a portion of the records pertaining to participants' accounts to persons not affiliated with the Participating Companies. All expenses of administering the Plan shall be paid by the Participating Companies. 13. Maximum Number of Shares: Subject to adjustment as hereinafter set forth, the total number of shares of Stock which are purchased under the Plan may not exceed 1,264,536. Stock sold hereunder may be treasury shares or authorized but unissued shares. In the event the Company shall at any time after the effective date of the Plan change its issued Stock into an increased number of shares, with or without par value, through a stock dividend or split-up of shares, or into a decreased number of shares, with or without par value, through a combination of shares, then, effective with the record date for such change, the maximum number of shares of Stock which thereafter may be purchased under the Plan shall be the maximum number of shares which, immediately prior to such record date, remained available for purchase under the Plan, proportionately increased, in the case of such stock dividend or split-up, or proportionately decreased, in the case of such combination of shares. 14. Miscellaneous: Except as otherwise expressly provided herein, any Authorization, election, notice or document to be submitted by an eligible employee or participant pursuant to the Plan shall be delivered to his employer corporation and, subject to any limitations specified in the Plan, shall be effective when so delivered. 3 The term "business day" shall mean any day other than Saturday, Sunday or a legal holiday in Illinois. The term "subsidiaries" shall mean all corporations which are subsidiary corporations (within the definition of Section 425 (f) of the Code) in respect of the Company. The masculine pronoun shall include the feminine. The Plan, and the Company's obligation to sell and deliver shares of Stock hereunder, shall be subject to all applicable federal, state and foreign laws, rules and regulations, and to such approval by any regulatory or governmental agency as may, in the opinion of counsel for the Company, be required. 4 EX-5 3 OPINION OF KIRKLAND & ELLIS 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 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 600,000 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 Employee Stock Purchase Plan (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 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 such documents, the execution, delivery and performance of such documents by each party Material Sciences Corporation August 18, 1997 Page 2 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. 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 EX-23.1 4 CONSENT OF ARTHUR ANDERSEN LLP 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
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