exv4w5






Exhibit 4.5




CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS

OF SERIES A JUNIOR PARTICIPATING PREFERRED SHARES

OF

FSI INTERNATIONAL, INC.




     I, Benno G. Sand, the Secretary of FSI International, Inc., a corporation organized and
existing under the Business Corporation Act of the State of Minnesota, in accordance with the
provisions of Section 302A.401 thereof, DO HEREBY CERTIFY:



     That pursuant to the authority conferred upon the Board of Directors by the Restated Articles
of Incorporation of the corporation, as amended, the Board of Directors on May 22, 1997, adopted
the following resolution creating a series of 300,000 Preferred Shares, no par value, designated as
Series A Junior Participating Preferred Shares:



     RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of
this corporation in accordance with the provisions of its Restated Articles of Incorporation, as
amended, a series of Preferred Stock of this corporation be, and it hereby is, created, and that
the designation and amount thereof and the relative rights and preferences of the shares of such
series, are as follows:



     1. Designation and Amount. The shares of such series shall be designated as “Series A
Junior Participating Preferred Shares” (the “Series A Preferred Shares”), and the number of shares
constituting such series shall be Three Hundred Thousand (300,000). The number of shares
constituting such series may, unless prohibited by the Articles of Incorporation or by applicable
law of the State of Minnesota, be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of Series A Preferred Shares to a number
less than the number of Common Shares then outstanding plus the number of Common Shares issuable
upon the exercise of outstanding options, rights or warrants or upon the conversion of any
outstanding securities issued by the corporation convertible into Series A Preferred Shares.



     2. Dividends and Distributions.



          (i) The holders of Series A Preferred Shares, in preference to the holders of Common Shares
and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on
the last business day of March, June, September and December in each year (each such date being
referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a Series A Preferred Share, or fraction thereof,
in an amount per share (rounded to the nearest cent) equal to the greater of (a) $1.00 or (b)
subject to the provision for adjustment hereinafter set forth, one hundred (100) times the
aggregate per share amount of all cash dividends, and one hundred (100) times the aggregate per
share amount (payable in kind) of all non-cash dividends or other





 









 







distributions, other than a dividend payable in Common Shares or a subdivision of the outstanding
Common Shares (by reclassification or otherwise), declared on the Common Shares since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any Series A Preferred Share, or fraction
thereof. In the event the corporation shall at any time after June 10, 1997 declare or pay any
dividend on Common Shares payable in Common Shares, or effect a subdivision or combination or
consolidation of the outstanding Common Shares (by reclassification or otherwise) into a greater or
lesser number of Common Shares, then in each such case the amount to which holders of Series A
Preferred Shares were entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the
number of Common Shares outstanding immediately after such event and the denominator of which is
the number of Common Shares that were outstanding immediately prior to such event.




          (ii) The corporation shall declare a dividend or distribution on the Series A Preferred Shares
as provided in subparagraph (i) of this paragraph 2 simultaneously with its declaration of a
dividend or distribution on the Common Shares (other than a dividend payable in Common Shares or a
subdivision of the outstanding Common Shares); provided that, in the event no dividend or
distribution shall have been declared on the Common Shares during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00
per share on the Series A Preferred Shares shall nevertheless be payable, out of funds legally
available for such purpose, on such subsequent Quarterly Dividend Payment Date.




          (iii) Dividends shall begin to accrue and be cumulative on outstanding Series A Preferred
Shares from the Quarterly Dividend Payment Date immediately preceding the date of issue of such
Series A Preferred Shares, unless the date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders of Series A
Preferred Shares entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the Series A Preferred Shares in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares outstanding at that time. The Board of Directors may
fix a record date for the determination of holders of Series A Preferred Shares entitled to receive
payment of a dividend or distribution declared thereon, which record date shall be not more than
sixty (60) days prior to the date fixed for the payment thereof.




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     3. Voting Rights. The holders of Series A Preferred Shares shall have the following
voting rights:



          (i) Subject to the provision for adjustment hereinafter set forth, each Series A Preferred
Share shall entitle the holder thereof to one hundred (100) votes on all matters submitted to a
vote of the shareholders of the corporation. In the event the corporation shall at any time after
June 10, 1997 declare or pay any dividend on Common Shares payable in Common Shares, or effect a
subdivision or combination or consolidation of the outstanding Common Shares (by reclassification
or otherwise) into a greater or lesser number of Common Shares, then in each such case the number
of votes per share to which holders of Series A Preferred Shares were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction, the numerator of which is
the number of Common Shares outstanding immediately after such event and the denominator of which
is the number of Common Shares that were outstanding immediately prior to such event.




          (ii) Except as otherwise provided herein, in any other Certificate of Designation, Preferences
and Rights creating a series of Preferred Stock or by law, the holders of Series A Preferred Shares
and the holders of Common Shares and any other capital shares of the corporation having general
voting rights shall vote together as one class on all matters submitted to a vote of the
shareholders of the corporation.




          (iii) Except as otherwise provided herein or by law, the holders of Series A Preferred Shares
shall have no special voting rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Shares and any other capital stock of the
corporation having general voting rights as set forth herein) for taking any corporate action.




     4. Certain Restrictions.



          (i) Whenever quarterly dividends or other dividends or distributions payable on the Series A
Preferred Shares as provided in paragraph 2 hereof are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on Series A Preferred Shares
outstanding shall have been paid in full, the corporation shall not:




               (a) declare or pay dividends, or make any other distributions, on any shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Shares;



               (b) declare or pay dividends, or make any other distributions, on any shares of stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series
A Preferred Shares, except dividends paid ratably on the Series A Preferred Shares and all such
parity stock on which dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;



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               (c) redeem or purchase or otherwise acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Shares, provided that the corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of stock of the corporation ranking
junior (both as to dividends and upon liquidation, dissolution or winding up) to the Series A
Preferred Shares; or



               (d) redeem or purchase or otherwise acquire for consideration any Series A Preferred Shares,
or any shares of stock ranking on a parity with the Series A Preferred Shares, except in accordance
with a purchase offer made in writing or by publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and equitable treatment among the
respective series or classes.



          (ii) The corporation shall not permit any subsidiary of the corporation to purchase or
otherwise acquire for consideration any shares of stock of the corporation unless the corporation
could, under subparagraph (i) of this paragraph 4, purchase or otherwise acquire such shares at
such time and in such manner.




     5. Reacquired Shares. Any Series A Preferred Shares purchased or otherwise acquired
by the corporation in any manner whatsoever shall constitute authorized but unissued Preferred
Shares and may be reissued as part of a new series of Preferred Stock by resolution or resolutions
of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein,
in the Articles of Incorporation, or in any other Certificate of Designation, Preferences and
Rights creating a series of Preferred Stock or as otherwise required by law.



     6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or
winding up of the corporation, no distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Shares unless, prior thereto, the holders of Series A Preferred Shares shall
have received the greater of (i) $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of such payment, or (ii)
an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal
to one hundred (100) times the aggregate amount to be distributed per share to holders of Common
Shares, or (b) to the holders of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred Shares, except
distributions made ratably on the Series A Preferred Shares and all other such parity stock in
proportion to the total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the corporation shall at any time after
June 10, 1997 declare or pay any dividend on the Common Shares payable in Common Shares, or effect
a subdivision or combination or consolidation of the outstanding Common Shares (by reclassification
or otherwise)



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into a greater or lesser number of Common Shares, then in each such case the aggregate amount to
which holders of Series A Preferred Shares were entitled immediately prior to such event under
clause (a)(ii) of the preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of Common Shares outstanding immediately after such event and
the denominator of which is the number of Common Shares that were outstanding immediately prior to
such event.




     7. Consolidation, Merger, Exchange, etc. In case the corporation shall enter into any
consolidation, merger, combination, statutory share exchange or other transaction in which the
Common Shares are exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case the Series A Preferred Shares shall at the same time be similarly
exchanged or changed into an amount per share (subject to the provision for adjustment hereinafter
set forth) equal to one hundred (100) times the aggregate amount of stock, securities, money and/or
any other property (payable in kind), as the case may be, into which or for which each Common Share
is changed or exchanged. In the event the corporation shall at any time after June 10, 1997
declare or pay any dividend on Common Shares payable in Common Shares, or effect a subdivision or
combination or consolidation of the outstanding Common Shares (by reclassification or otherwise)
into a greater or lesser number of Common Shares, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of Series A Preferred Shares shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the number of Common
Shares outstanding immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.



     8. No Redemption. The Series A Preferred Shares shall not be redeemable.



     9. Rank. The Series A Preferred Shares shall rank junior in terms of dividend and
liquidation, dissolution and winding up rights to all other series of the corporation’s Preferred
Stock hereafter issued that specifically provide that they shall rank senior to the Series A
Preferred Shares.



     10. Fractional Shares. Series A Preferred Shares may be issued in fractions of a
share which shall entitle the holder, in proportion to such holder’s fractional shares, to receive
dividends, participate in distributions and to have the benefit of all other rights of holders of
Series A Preferred Shares.



     IN WITNESS WHEREOF, I have executed this Certificate of Designation, Preferences and Rights
this 22nd day of May, 1997.



	 	 	 	 	 
	 

	 	/s/ Benno G. Sand
 

Benno G. Sand, Secretary
	 	 






STATE OF MINNESOTA

DEPARTMENT OF STATE

    FILED

MAY 23 1997

[ILLEGIBLE]

Secretary of State

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