AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
FSI INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-1223238
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
322 LAKE HAZELTINE DRIVE 55318
CHASKA, MINNESOTA (Zip Code)
(Address of principal executive offices)
FSI INTERNATIONAL, INC.
1997 OMNIBUS STOCK PLAN
(Full title of the plan)
JOEL A. ELFTMANN
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
FSI INTERNATIONAL, INC.
322 LAKE HAZELTINE DRIVE
CHASKA, MINNESOTA 55318
(Name and address of agent for service)
(612) 448-5440
(Telephone number, including area code, of agent for service)
----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
Proposed
Proposed Maximum
Title of Amount Maximum Aggregate Amount of
Securities to to be Offering Price Offering Registration
be Registered Registered Per Share(1) Price(1) Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,000,000
without par value Shares $14.41 $14,410,000 $4,366.67
===============================================================================================================
(1) Estimated solely for the purpose of the registration fee pursuant to
Rules 457(c) and (h)(1) under the Securities Act of 1933, as amended,
and based on the average of the high and low sale prices per share of
the registrant's Common Stock on June 25, 1997, as reported on the
Nasdaq National Market System.
</TABLE>
================================================================================
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are, as of their respective dates,
incorporated by reference in this Registration Statement:
(a) The Annual Report on Form 10-K of FSI International, Inc. (the
"Company") for the fiscal year ended August 31, 1996 (which incorporates by
reference certain portions of the Company's 1996 Annual Report to Shareholders,
including financial statements and accompanying information, and certain
portions of the Company's definitive proxy statement for the Company's 1997
Annual Meeting of Shareholders);
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual Report on
Form 10-K referred to in (a) above; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 dated October 31, 1988, together
with any amendments or reports filed for the purpose of updating such
descriptions.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
that indicates that all shares of Common Stock offered have been sold or that
deregisters all shares of Common Stock then remaining unsold, shall be deemed to
be incorporated by reference in, and to be a part of, this Registration
Statement from the date of filing of such 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 incorporated herein by reference or in any other
subsequently filed document that is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any 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.
Faegre & Benson LLP acts as counsel for the Company. Partners of Faegre
& Benson LLP directly own 2,000 shares and indirectly hold 3,000 shares of
Company Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 4.01 of the Company's Restated By-Laws provides that the
Company shall indemnify its directors and officers to the full extent required
or permitted by Minnesota Statutes or by other provisions of law. Section
302A.521 of the Minnesota Statutes provides in substance that, unless prohibited
or limited by its articles of incorporation or by-laws, a corporation must
indemnify an officer or director who is made or threatened to be made a party to
a proceeding by reason of his or her capacity as an officer or director against
judgments, penalties, fines, settlements and reasonable expenses, including
attorneys' fees and disbursements, incurred by such person in connection with
the proceeding, if certain criteria are met. These criteria, all of which must
be met by the person seeking indemnification, are: (a) that such person has not
been indemnified by another organization for the same judgments, penalties,
fines, settlements and expenses; (b) that such person must have acted in good
faith; (c) that no improper personal benefit was obtained by such person and
that, if applicable, certain statutory conflict of interest provisions have been
satisfied; (d) that, in the case of a criminal proceeding, such person had no
reasonable cause to believe that the conduct was unlawful; and (e) that such
person acted in a manner he or she reasonably believed was in the best interests
of the corporation or, in certain limited circumstances, not opposed to the best
interests of the corporation. The determination as to eligibility for
indemnification is made by the members of the corporation's board of directors,
or a committee thereof, who are at the time not parties to the proceedings under
consideration, by special legal counsel, by the shareholders who are not parties
to the proceedings or by a court.
Article VIII of the Company's Composite Amended and Restated Articles
of Incorporation provides that a director shall not be liable to the Company or
its shareholders for monetary damages for breach of fiduciary duty as director,
except: (i) for any breach of the director's duty of loyalty to the Company or
its shareholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) for dividends, stock
repurchases and other distributions made in violation of Minnesota law or for
violations of the Minnesota securities laws; (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 the provision in the Company's
Restated Articles of Incorporation limiting such liability. Article VIII does
not affect the availability of equitable remedies, such as an action to enjoin
or rescind a transaction involving a breach of fiduciary duty, although, as a
practical matter, equitable relief may not be available. Article VIII also does
not limit the liability of directors for violations of, or relieve them from the
necessity of complying with, the federal securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit Description
------- -----------
4.1 Composite Amended and Restated Articles of Incorporation of
the Company.
4.2 Restated By-Laws of the Company (incorporated by reference to
Exhibit 3(b) to the Company's Registration Statement on Form
S-1, Registration No. 33-25035).
4.3 FSI Corporation Stock Purchase Agreement, dated March 20, 1981
(incorporated by reference to Exhibit 4(b) to the Company's
Registration Statement on Form S-1, Registraton No. 33-25035).
4.4 Stock Purchase Agreement, dated September 15, 1982
(incorporated by reference to Exhibit 4(c) to the Company's
Registration Statement on Form S-1, Registration No.
33-25035).
4.5 Common Stock and Common Stock Purchase Warrants Agreement,
dated October 15, 1985 (incorporated by reference to Exhibit
4(d) to the Company's Registration Statement on Form S-1,
Registration No. 33-25035).
4.6 Second Amendment, dated January 9, 1989, to Common Stock and
Common Stock Purchase Warrants Agreement (incorporated by
reference to Exhibits to the Company's Annual Report on Form
10-K for the fiscal year ended August 26, 1989, File No.
0-17276).
4.7 Registration and Preemptive Rights Agreement, dated October
15, 1985 (incorporated by reference to Exhibit 4(h) to the
Company's Registration Statement on Form S-1, Registration No.
33-25035).
5 Opinion of Faegre & Benson LLP.
23.1 Consent of Faegre & Benson LLP (included in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
99 FSI International, Inc. 1997 Omnibus Stock Plan (incorporated
by reference to the Company's Quarterly Report on Form 10-Q
for the period ended March 1, 1997).
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant 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 the City of Chaska, State of Minnesota, on May 31, 1997.
FSI INTERNATIONAL, INC.
By /s/ Benno G. Sand
-------------------------------------
Its Executive Vice President, Chief
Financial Officer, and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Joel A. Elftmann Chairman, President, Chief Executive May 31, 1997
- --------------------------- Officer, and Director
Joel A. Elftmann (Principal Executive Officer)
/s/ Benno G. Sand Executive Vice President, Chief Financial May 31, 1997
- --------------------------- Officer, and Secretary
Benno G. Sand (Principal Financial and Accounting Officer)
/s/ James A. Bernards Director May 31, 1997
- ---------------------------
James A. Bernards
/s/ Neil R. Bonke Director May 31, 1997
- ---------------------------
Neil R. Bonke
/s/ Terrence W. Glarner Director May 31, 1997
- ---------------------------
Terrence W. Glarner
/s/ Joanna T. Lau Director May 31, 1997
- ---------------------------
Joanna T. Lau
/s/ Robert E. Lorenzini Director May 31, 1997
- ---------------------------
Robert E. Lorenzini
/s/ Charles R. Wofford Director May 31, 1997
- ---------------------------
Charles R. Wofford
</TABLE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description
- ------- -----------
<S> <C>
4.1 Composite Amended and Restated Articles of Incorporation
of the Company..................................................Filed Electronically
4.2 Restated By-Laws of the Company (incorporated by
reference to Exhibit 3(b) to the Company's Registration
Statement on Form S-1, Registration No. 33-25035)...............Incorporated by Reference
4.3 FSI Corporation Stock Purchase Agreement, dated March
20, 1981 (incorporated by reference to Exhibit 4(b) to
the Company's Registration Statement on Form S-1,
Registration No. 33-25035)......................................Incorporated by Reference
4.4 Stock Purchase Agreement, dated September 15, 1982
(incorporated by reference to Exhibit 4(c) to the
Company's Registration Statement on Form S-1,
Registration No. 33-25035)......................................Incorporated by Reference
4.5 Common Stock and Common Stock Purchase Warrants
Agreement, dated October 15, 1985 (incorporated by
reference to Exhibit 4(d) to the Company's Registration
Statement on Form S-1, Registration No. 33-25035)...............Incorporated by Reference
4.6 Second Amendment, dated January 9, 1989, to Common Stock
and Common Stock Purchase Warrants Agreement
(incorporated by reference to Exhibits to the Company's
Annual Report on Form 10-K for the fiscal year ended
August 26, 1989, File No. 0-17276)..............................Incorporated by Reference
4.7 Registration and Preemptive Rights Agreement, dated
October 15, 1985 (incorporated by reference to Exhibit
4(h) to the Company's Registration Statement on Form
S-1, Registration No. 33-25035).................................Incorporated by Reference
5 Opinion of Faegre & Benson LLP..................................Filed Electronically
23.1 Consent of Faegre & Benson LLP (included in Exhibit 5)..........Filed Electronically
23.2 Consent of KPMG Peat Marwick LLP................................Filed Electronically
99 FSI International, Inc. 1997 Omnibus Stock Plan
(incorporated by reference to Exhibit 10.33 to the
Company's Quarterly Report for the period ended March 1,
1997)...........................................................Incorporated by Reference
</TABLE>
Exhibit 4.1
COMPOSITE
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 60,000,000. 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 50,000,000 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 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.
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 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 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 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 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 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 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 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.
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.
Exhibit 5
[LETTERHEAD OF FAEGRE & BENSON LLP]
July 1, 1997
FSI International, Inc.
322 Lake Hazeltine Drive
Chaska, Minnesota 55318
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 under the
Securities Act of 1933, as amended (the "Registration Statement"), relating to
the offering of up to 1,000,000 shares of Common Stock, without par value (the
"Shares"), of FSI International, Inc., a Minnesota corporation (the "Company"),
pursuant to the Company's 1997 Omnibus Stock Plan, we have examined such
corporate records and other documents, including the Registration Statement, and
have reviewed such matters of law as we have deemed relevant hereto, and, based
upon this examination and review, it is our opinion that all necessary corporate
action on the part of the Company has been taken to authorize the issuance and
sale of the Shares and that, when issued and sold as contemplated in the
Registration Statement, the Shares will be legally issued, fully paid and
nonassessable under the current laws of the State of Minnesota.
We are admitted to the practice of law in the State of Minnesota and
the foregoing opinions are limited to the laws of that state and the federal
laws of the United States of America.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Faegre & Benson LLP
FAEGRE & BENSON LLP
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
FSI International, Inc.:
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
Minneapolis, Minnesota
July 1, 1997
