exv4w1






Exhibit 4.1




AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

FSI INTERNATIONAL, INC.




ARTICLE I




          The name of this Corporation is FSI International, Inc.




ARTICLE II




          The registered office of this Corporation is located at 322 Lake Hazeltine Drive, Chaska,
Minnesota 55318.




ARTICLE III




          The aggregate number of shares that this Corporation has authority to issue is 35,000,000.
The shares are classified in two classes, consisting of 10,000,000 shares of Preferred Stock,
which shares shall have no designated par value, and 25,000,000 shares of Common Stock, which
shares shall have no designated par value. The Board of Directors is authorized to establish one
or more series of Preferred Stock, setting forth the designation of each such series, and fixing
the relative rights and preferences of each such series.




ARTICLE IV




          No shareholder of this Corporation shall have any cumulative voting rights.




ARTICLE V




          No shareholder of this Corporation shall have any pre-emptive rights to subscribe for,
purchase or acquire any shares of the Corporation of any class, whether unissued or now or
hereafter authorized, or any obligations or other securities convertible into or exchangeable for
any such shares.




ARTICLE VI




          Any action required or permitted to be taken at a meeting of the Board of Directors of this
Corporation not needing approval by the shareholders under Minnesota Statutes, Chapter 302A, may
be taken by written action signed by the number of directors that would be required to take such
action at a meeting of the Board of Directors at which all directors are present.








 









 








ARTICLE VII




          Section 302A.671 of the Minnesota Statutes will not apply to any control share acquisition
of Corporation capital stock.




ARTICLE VIII




          No director of the Corporation shall be personally liable to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director; provided, however,
that this Article VIII shall not eliminate or limit the liability of a director to the extent
provided by applicable law (i) for any breach of the director’s duty of loyalty to the Corporation
or its shareholders, (ii) for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (iii) under section 302A.559 or 80A.23 of the Minnesota
Statutes, (iv) for any transaction from which the director derived an improper personal benefit,
or (v) for any act or omission occurring prior to the effective date of this Article VIII. No
amendment to or repeal of this Article VIII shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to any acts or omissions
of such director occurring prior to such amendment or repeal.




ARTICLE IX




          The business and affairs of the Corporation shall be managed by or under the direction of a
Board of Directors consisting of not less than five nor more than eleven persons, who need not be
shareholders. The number of directors may be increased by the shareholders or Board of Directors
or decreased by the shareholders from the number of directors on the Board of Directors immediately
prior to the effective date of this Article IX; provided, however, that any change in the number of
directors on the Board of Directors (including, without limitation, changes at annual meetings of
shareholders) shall be approved by the affirmative vote of not less than seventy-five percent (75%)
of the votes entitled to be cast by the holders of all then outstanding shares of Voting Stock (as
defined in Article X), voting together as a single class, unless such change shall have been
approved by a majority of the entire Board of Directors. If such change shall not have been so
approved, the number of directors shall remain the same. The directors shall be divided into three
classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire Board of Directors.




          At the 1990 annual meeting of shareholders, Class I directors shall be elected for a one-year
term, Class II directors for a two-year term and Class III directors for a three-year term. At
each succeeding annual meeting of shareholders beginning in 1991, successors to the class of
directors whose terms expires at that annual meeting shall be elected for a three-year term. If
the number of directors is




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changed, any increase or decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible, and any additional director of
any class elected to fill a vacancy resulting from an increase in such class shall hold office for
a term that shall coincide with the remaining term of that class. In no case will a decrease in
the number of directors shorten the term of any incumbent director. A director shall hold office
until the annual meeting for the year in which the director’s term expires and until a successor
shall be elected and qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Removal of a director from office (including a director
named by the Board of Directors to fill a vacancy or newly created directorship), with or without
cause, shall require the affirmative vote of not less than seventy-five percent (75%) of the votes
entitled to be cast by the holders of all then outstanding shares of Voting Stock, voting together
as a single class. Any vacancy on the Board of Directors that results from an increase in the
number of directors may be filled by a majority of the Board of Directors then in office, and any
other vacancy occurring in the Board of Directors may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director. Any director elected
to fill a vacancy not resulting from an increase in the number of directors shall have the same
remaining term as that of such director’s predecessor.




          Notwithstanding the foregoing, whenever the holders of any one or more classes of preferred
or preference stock issued by the Corporation shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of shareholders, the election, term of
office, filling of vacancies and other features of such directorships shall be governed by or
pursuant to the applicable terms of these Articles of Incorporation, and such directors so elected
shall not be divided into classes pursuant to this Article IX unless expressly provided by such
terms.




          No person (other than a person nominated by or on behalf of the Board of Directors) shall be
eligible for election as a director at any annual or special meeting of shareholders unless a
written request that his or her name be placed in nomination is received from a shareholder of
record by the Secretary of the Corporation not less than 60 days prior to the date fixed for the
meeting, together with the written consent of such person to serve as a director.




          Notwithstanding any other provisions of these Articles of Incorporation (and notwithstanding
the fact that a lesser percentage or separate class vote may be specified by law or these Articles
of Incorporation), the affirmative vote of the holders of not less than seventy-five percent (75%)
of the votes entitled to be cast by the holders of all then outstanding shares of Voting Stock,
voting together as a single class, shall be required to amend or repeal, or adopt any provisions
inconsistent with, this Article IX.














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ARTICLE X




          A. In addition to any affirmative vote required by law or these Articles of Incorporation, a
Business Combination (as hereinafter defined) shall, except as otherwise expressly provided in
Section B of this Article X, require the affirmative vote of not less than seventy-five percent
(75%) of the votes entitled to be cast by the holders of all then outstanding shares of Voting
Stock (as hereinafter defined), voting together as a single class. Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that a lesser percentage or
separate class vote may be specified, by law or by any other provision of these Articles of
Incorporation or in any agreement with any national securities exchange or otherwise.




          B. The provisions of Section A of this Article X shall not be applicable to any particular
Business Combination, and such  Business Combination shall require only such affirmative
vote, if any, as is required by law or by any other provision of these Articles of Incorporation or
in any agreement with any national securities exchange or otherwise, if the conditions specified
in either of the following Paragraphs 1 or 2 are met:





     1. The Business Combination shall have been approved by a majority of the Continuing
Directors (as hereinafter defined).




     2. All of the following conditions shall have been met:




     a. The aggregate amount of cash and the Fair Market Value (as hereinafter
defined) as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of Common Stock in
such Business Combination shall be at least equal to the higher amount determined
under clauses (i) and (ii) below:




     (i) (if applicable) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers’ fees) paid by or on
behalf of the Interested Stockholder (as hereinafter defined) for any share
of Common Stock in connection with the acquisition by the Interested
Stockholder of beneficial ownership of shares of Common Stock (a) within the
two-year period immediately prior to the date of the first public
announcement of the proposed Business Combination (the “Announcement Date”)
or (b) in the transaction in which it became an Interested Stockholder,
whichever is higher; and




     (ii) the Fair Market Value per share of Common Stock on the Announcement Date or on the



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date on which the Interested Stockholder became an Interested Stockholder (such
latter date being referred to herein as the “Determination Date”), whichever is higher.




     b. The aggregate amount of cash and the Fair Market Value as of the date of the
consummation of the Business Combination of consideration other than cash to be received per share
by holders of shares of any class or series of outstanding Capital Stock (as hereinafter
defined), other than Common Stock, shall be at least equal to the highest amount determined under
clauses (i), (ii) and (iii) below:




     (i) (if applicable) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers’ fees) paid by or on behalf of the
Interested Stockholder for any share of such class or series of Capital Stock in
connection with the acquisition by the Interested Stockholder of beneficial ownership of
shares of such class or series of Capital Stock (a) within the two-year period
immediately prior to the Announcement Date or (b) in the transaction in which it became
an Interested Stockholder, whichever is higher;




     (ii) the Fair Market Value per share of such class or series of Capital Stock on the
Announcement Date or on the Determination Date, whichever is higher; and




     (iii) (if applicable) the highest preferential amount per share to which the holders
of shares of such class or series of Capital Stock would be entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, regardless of whether the Business Combination to be consummated constitutes
such an event.




The provisions of this Paragraph 2.b shall be required to be met with respect to every class or
series of outstanding Capital Stock, whether or not the Interested Stockholder has previously
acquired beneficial ownership of any shares of a particular class or series of Capital Stock.




     c. The consideration to be received by holders of a particular class or series of outstanding
Capital Stock shall be in cash or in the same form as previously has been paid by or on
behalf of the Interested Stockholder in connection with its direct or indirect acquisition of
beneficial ownership of shares of such class or series of Capital Stock. If the consideration so
paid for shares of any class or series of Capital Stock varied as to form, the form of



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consideration for such class or series of Capital Stock shall be either cash or the form used to
acquire beneficial ownership of the largest number of shares of such class or series of Capital
Stock previously acquired by the Interested Stockholder. The price determined in accordance with
Paragraphs 2.a and 2.b of Section B of this Article X shall be subject to appropriate adjustment
in the event of any stock dividend, stock split, combination of shares or similar event.




     d. After such Interested Stockholder has become an Interested Stockholder and prior to the
consummation of such Business Combination: (i) there shall have been no failure to declare and pay
at the regular date therefor any full quarterly dividends (whether or not cumulative) payable in
accordance with the terms of any outstanding Capital Stock, except as approved by a majority of
the Continuing Directors; (ii) there shall have been no reduction in the annual rate of dividends
paid on the Common Stock (except as necessary to reflect any stock dividend, stock split,
combination of shares or similar event), except as approved by a majority of the Continuing
Directors; (iii) there shall have been an increase in the annual rate of dividends paid on the
Common Stock as necessary to reflect any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction that has the effect of reducing
the number of outstanding shares of Common Stock, unless the failure to increase such annual
rate is approved by a majority of the Continuing Directors; and (iv) except as approved by a
majority of the Continuing Directors, such Interested Stockholder shall not have become the
beneficial owner of any additional shares of Capital Stock except as part of the transaction that
results in such Interested Stockholder becoming an Interested Stockholder and except in a
transaction that, after giving effect thereto, would not result in any increase in the Interested
Stockholder’s percentage beneficial ownership of any class or series of Capital Stock.




     e. After such Interested Stockholder has become an Interested Stockholder, such Interested
Stockholder shall not have received the benefit, directly or indirectly (except
proportionately as a shareholder of the Corporation), of any loans, advances, guarantees, pledges
or other financial assistance or any tax credits or other tax advantages provided by
the Corporation, whether in anticipation of or in connection with such Business Combination
or otherwise.




     f. A proxy or information statement describing the proposed Business Combination and complying
with the requirements of the Securities Exchange Act of 1934 and the rules and regulations
thereunder (the “Act”) (or any subsequent provisions replacing such Act, rules





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or regulations) shall be mailed to all shareholders of the Corporation at least 30 days
prior to the consummation of such Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to the Act or subsequent provisions). The proxy or
information statement shall contain on the first page thereof, in a prominent place, any statement
as to the advisability (or inadvisability) of the Business Combination that a majority of the
Continuing Directors may choose to make and, if deemed advisable by a majority of the Continuing
Directors, the opinion of an investment banking firm selected by a majority of the Continuing
Directors as to the fairness (or lack of fairness) of the terms of the Business Combination from a
financial point of view to the holders of the outstanding shares of Capital Stock other than the
Interested Stockholder and its Affiliates (as hereinafter defined) or Associates (as hereinafter
defined).




     g. Such Interested Stockholder shall not have made or caused to be made any major change in
the Corporation’s business or equity capital structure without the approval of a majority of the
Continuing Directors.




     C. For the purposes of this Article X:




     1. The term “Business Combination” shall mean:




     a. any merger, consolidation or statutory exchange of shares of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested Stockholder or (ii) any other
corporation (whether or not itself an Interested Stockholder) which is, or after such merger,
consolidation or statutory share exchange would be, an Affiliate or Associate of an Interested
Stockholder; provided, however, that the foregoing shall not include the merger of a wholly
owned Subsidiary of the Corporation into the Corporation or the merger of two or more
wholly owned Subsidiaries of the Corporation; or




     b. any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with an Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder of any assets of the Corporation or any
Subsidiary with a value equal to or greater than ten percent (10%) of the book value of the
consolidated assets of the Corporation; or




     c. any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with the Corporation or any Subsidiary of any
assets of any Interested Stockholder or any Affiliate or Associate of any



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Interested Stockholder with a value equal to or greater than ten percent (10%) of
the book value of the consolidated assets of the Corporation; or




     d. the issuance or transfer by the Corporation or any Subsidiary (in one
transaction or a series of transactions) to any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder of any securities of the Corporation (except
pursuant to stock dividends, stock splits, or similar transactions which would not have
the effect, directly or indirectly, of increasing the proportionate share of any class or
series of Capital Stock, or any securities convertible into Capital Stock or into
equity securities of any Subsidiary, that is beneficially owned by any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder) or of any
securities of a Subsidiary .(except pursuant to a pro rata distribution to all holders of
Common Stock of the Corporation); or




     e. the adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of an Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder; or




     f. any transaction (whether or not with or otherwise involving an Interested
Stockholder) that has the effect, directly or indirectly, of increasing the proportionate
share of any class or series of Capital Stock, or any securities convertible into Capital
Stock or into equity securities of any Subsidiary, that is beneficially owned by any
Interested Stockholder or any Affiliate or Associate of any Interested Stockholder,
including, without limitation, any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger, consolidation or
statutory exchange of shares of the Corporation with any of its Subsidiaries that has such
effect; or




     g. any agreement, contract or other arrangement or understanding providing for any one
or more of the actions specified in the foregoing clauses (a) to (f).




     2. The term “Capital Stock” shall mean all capital stock of the Corporation authorized to be
issued from time to time under Article III of these Articles of Incorporation. The term
“Voting Stock” shall mean all Capital Stock of the Corporation entitled to vote generally in
the election of directors of the Corporation.




     3. The term “person” shall mean any individual, firm, corporation or other entity and shall
include any group comprised of any person and any other person with whom such person or any
Affiliate or Associate of such person has any agreement, arrangement or understanding,
directly or




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indirectly, for the purpose of acquiring, holding, voting or disposing of Capital Stock.




     4. The term “Interested Stockholder” shall mean any person (other than the Corporation
or any Subsidiary and other than any profit-sharing, employee stock ownership or other employee
benefit plan of the Corporation or any Subsidiary or any trustee of or fiduciary with respect to
any such plan when acting in such capacity) who (a) is the beneficial owner of Voting Stock
representing ten percent (10%) or more of the vote entitled to be cast by the holders of all then
outstanding shares of Voting Stock; or (b) is an Affiliate or Associate of the Corporation and at
any time within the two-year period immediately prior to the date in question was the beneficial
owner of Voting Stock representing ten percent (10%) or more of the votes entitled to be cast
by the holders of all then outstanding shares of Voting Stock; or (c) is an assignee of or has
otherwise succeeded to any shares of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any Interested Stockholder,
if such assignment or succession shall have occurred in the course of a transaction or
series of transactions not involving a public offering within the meaning of the Securities Act of
1933.




     5. A person shall be a “beneficial owner” of any Capital Stock (a) which such person or any of
its Affiliates or Associates beneficially owns, directly or indirectly; (b) which such person or
any of its Affiliates or Associates has, directly or indirectly, (i) the right to acquire
(whether such right is exercisable immediately or subject only to the passage of time), pursuant to
any agreement, arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to
any agreement, arrangement or understanding, or (iii) the right to dispose or direct the
disposition of, pursuant to any agreement, arrangement or understanding; or (c) which are
beneficially owned, directly or indirectly, by any other person with which such person or any of
its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Capital Stock. For the purposes
of determining whether a person is an Interested Stockholder pursuant to Paragraph 4 of this
Section C, the number of shares of Capital Stock deemed to be outstanding shall include shares
deemed beneficially owned by such person through application of this Paragraph 5, but shall
not include any other shares of Capital Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, exchange rights,
warrants or options, or otherwise.




     6. The term “Affiliate,” used to indicate a relationship with a specified person, shall
mean a person that directly, or indirectly through one or more





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intermediaries, controls, or is controlled by, or is under common control with, such specified
person. The term “Associate,” used to indicate a relationship with a specified person, shall mean
(a) any person (other than the Corporation or a Subsidiary) of which such specified person is an
officer or partner or is, directly or indirectly, the beneficial owner of ten percent (10%) or
more of any class of equity securities, (b) any trust or other estate in which such specified
person has a substantial beneficial interest or as to which such specified person serves as
trustee or in a similar fiduciary capacity, (c) any relative or spouse of such specified person or
any relative of such spouse, who has the same home as such specified person or who is a director
or officer of the Corporation or any Subsidiary, and (d) any person who is a director or officer
of such specified person or any of its parents or subsidiaries (other than the Corporation or a
Subsidiary).




     7. The term “Subsidiary” shall mean any corporation of which a majority of any class of equity
security is beneficially owned, directly or indirectly, by the Corporation; provided,
however, that for the purposes of Paragraph 4 of this Section C, the term “Subsidiary” shall mean
only a corporation of which a majority of each class of equity securities is beneficially
owned, directly or indirectly, by the Corporation.




     8. The term “Continuing Director” shall mean any member of the Board of Directors of the
Corporation, while such person is a member of the Board of Directors, who was a member of the Board
of Directors prior to the time that the Interested Stockholder involved in the Business Combination
in question became an Interested Stockholder, and any member of the Board of Directors, while such
person is a member of the Board of Directors, whose election, or nomination for election by the
Corporation’s shareholders, was approved by a vote of a majority of the Continuing Directors;
provided, however, that in no event shall an Interested Stockholder involved in the Business
Combination in question, or any Affiliate, Associate or representative of such Interested
Stockholder, be deemed to be a Continuing Director.




     9. The term “Fair Market Value” shall mean (a) in the case of cash, the amount of such cash;
(b) in the case of stock, the highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape, on the New York
Stock Exchange, or, if such stock is not listed on such Exchange, on the principal United States
securities exchange registered under the Act on which such stock is listed, or, if such stock is
not listed on any such exchange, the highest closing bid quotation with respect to a share
of such stock during the 30-day period preceding the date in question on the National Association
of Securities Dealers, Inc. Automated Quotations System or any similar system then in use, or, if
no such








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quotations are available, the fair market value on the date in question of a share of such
stock as determined by a majority of the Continuing Directors in good faith; and (c) in the
case of property other than cash or stock, the fair market value of such property on the date
in question as determined in good faith by a majority of the Continuing Directors.




     10. In the event of any Business Combination in which the Corporation survives, the
phrase “consideration other than cash to be received” as used in Paragraphs 2.a and 2.b of
Section B of this Article X shall include the shares of Common Stock and/or the shares of
any other class or series of Capital Stock retained by the holders of such shares.



               D. The Continuing Directors by majority vote shall have the power to determine for the
purposes of this Article X, on the basis of information known  to them after reasonable inquiry,
(a) whether a person is an Interested Stockholder,
(b) the number of shares of Capital Stock (including Voting Stock) or other securities beneficially
owned by any person,
(c) whether a person is an Affiliate or Associate of another,
(d) whether the assets that are the subject of any Business Combination equal or exceed ten percent
(10%) of the book value of the consolidated assets of the Corporation, (e) whether a proposed plan
of dissolution or liquidation is proposed by or on behalf of an Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder, (f) whether any transaction has the
effect, directly or indirectly, of increasing the proportionate share of any class or series of
Capital Stock, or any securities convertible into Capital Stock or into equity securities of
any Subsidiary, that is beneficially owned by an Interested Stockholder or any Affiliate or
Associate of an Interested Stockholder, (g) whether any Business Combination satisfies the
conditions set forth in Paragraph 2 of Section B of this Article X, and (h) such other matters
with respect to which a determination is required under this Article X. Any such determination
made in good faith shall be binding and conclusive on all parties.




               E. Nothing contained in this Article X shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.




               F. The fact that any Business Combination complies with the provisions of Section B of this
Article X shall not be construed to impose any fiduciary duty, obligation or responsibility
on the Board of Directors, or any member thereof, or the Continuing Directors, or any of them, to
approve such Business Combination or recommend its adoption or approval to the shareholders of the
Corporation, nor shall such compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, or the Continuing Directors, or any of them, with
respect to evaluations of or actions and responses taken with respect to such Business Combination.




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               G. Notwithstanding any other provisions of these Articles of Incorporation (and
notwithstanding the fact that a lesser percentage or separate class vote may be specified by law or
these Articles of Incorporation), the affirmative vote of the holders of not less than seventy-five
percent (75%) of the votes entitled to be cast by the holders of all then outstanding shares of
Voting Stock, voting together as a single class, shall be required to amend or repeal, or adopt any
provisions inconsistent with, this Article X.




8715T





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