<PAGE> 1
As filed with the Securities and Exchange Commission on December 4, 1996
Registration No. 333-
-----
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COMPUWARE CORPORATION
(Exact name of registrant as specified in its charter)
Michigan 38-2007430
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
31440 Northwestern Highway, Farmington Hills, Michigan 48334
(Address of Principal Executive Offices) (Zip Code)
Compuware Corporation Employee Stock Purchase Plan
(Full Title of the Plan)
Peter Karmanos, Jr., Chairman
Compuware Corporation
31440 Northwestern Highway
Farmington Hills, Michigan 48334
(Name and address of agent for service)
(810) 737-7300
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share (1) price (1) fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,000,000 $56.75 $56,750,000 $19,569.10
$.01 par value
per share (the
"Common Stock") (2)
- ------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Calculated pursuant to Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act"), solely for the purpose of computing
the registration fee and based on the average of the high and low
prices of the Common Stock, as quoted on the Nasdaq Stock Market on
November 29, 1996.
(2) In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the plan described herein.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 of the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (d) below are incorporated
by reference in this Registration Statement on Form S-8. In addition, all
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment that
indicates that all securities have been sold or that deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents:
(a) Registrant's Annual Report on Form 10-K for the
fiscal year ended March 31, 1996;
(b) Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996;
(c) Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1996;
(d) The description of Registrant's Common Stock
contained in Registrant's Registration Statement on
Form S-1, filed with the Securities and Exchange
Commission on October 23, 1992 (Commission File No.
33-53652), including any amendment or report filed
for the purpose of updating such description.
Any statement contained in a document incorporated or deemed
to be incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein by reference modifies or
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<PAGE> 3
supersedes such prior 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. INTEREST OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Sections 561-571 of the Michigan Business Corporation
Act, directors and officers of a Michigan corporation may be entitled to
indemnification by the corporation against judgments, expenses, fines and
amounts paid by the director or officer in settlement of claims brought against
them by third persons or by or in the right of the corporation if those
directors and officers acted in good faith and in a manner reasonably believed
to be in, or not opposed to, the best interests of the corporation and its
shareholders.
The Registrant is obligated under its Bylaws to indemnify a
present or former director or executive officer of the Registrant, and may
indemnify any other person, to the fullest extent now or hereafter authorized
or permitted by law in connection with any actual or threatened civil,
criminal, administrative or investigative action, suit or proceeding arising
out of his or her past or future service to the Registrant, or to another
corporation at the request of the Registrant. In addition, the Articles of
Incorporation of the Registrant limit certain personal liabilities of directors
of the Registrant; provided, however, that the Articles of Incorporation do not
eliminate or limit the liability of a director for any of the following: (i) a
breach of the director's duty of loyalty to the corporation or its
shareholders; (ii) acts or omissions not in good faith or that involve
intentional misconduct or knowing violation of law; (iii) a violation of
Section 551(1) of the Michigan Business Corporation Act; (iv) a transaction
from which the director derived an improper personal benefit; or (v) an act or
omission occurring before the effective date of the Article.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE> 4
ITEM 8. EXHIBITS.
4.1 Compuware Corporation Employee Stock Purchase Plan.
4.2 Registrant's Restated Articles of Incorporation (incorporated
by reference to Exhibit 3.1 to Registrant's Registration
Statement on Form S-1, as amended, Registration No. 33-53652).
4.3 Registrant's Amendment to Restated Articles of Incorporation
(incorporated by reference to Exhibit 3.1 to Registrant's
Registration Statement on Form S-4, as amended, Registration
No. 33-78822).
4.4 Registrant's Certificate of Amendment to Restated Articles of
Incorporation (incorporated by reference to Exhibit 3.2 to
Registrant's Registration Statement on Form S-4, as amended,
Registration No. 33-78822).
4.5 Registrant's Correction to Restated Articles of Incorporation
(incorporated by reference to Exhibit 3.3 to Registrant's
Registration Statement on Form S-4, as amended, Registration
No. 33-78822).
4.6 Registrant's Restated Bylaws, as amended (incorporated by
reference to Exhibit 3.3 to Registrant's Registration
Statement on Form S-1, as amended, Registration No. 33-53652).
5 Opinion of Honigman Miller Schwartz and Cohn, counsel to the
Registrant, as to the legality of the shares of Common Stock
being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Honigman Miller Schwartz and Cohn (included in the
opinion filed as Exhibit 5 to this Registration Statement).
24 Power of Attorney (included on the signature page of this
Registration Statement).
ITEM 9. UNDERTAKINGS.
(a) 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:
(i) to include any prospectus required
by Section 10(a)(3) of the
Securities Act;
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<PAGE> 5
(ii) to reflect in the Prospectus any
facts or events arising after the
effective date of this Registration
Statement (or the most recent
post-effective amendment thereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in this Registration Statement;
(iii) to include any material information
with respect to the plan of
distribution not previously
disclosed in this Registration
Statement or any material change to
such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the Registration Statement
is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such
post-effective amendment shall be deemed to
be a new registration statement relating to
the securities offered therein, and the
offering of such securities at that time
shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the
securities being registered that remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act that is incorporated by
reference in this 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.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to
directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange
Commission, such indemnification is against public
policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other
than the payment by the Registrant of expenses
incurred or paid by a director,
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<PAGE> 6
officer or controlling person of the Registrant in
the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities
being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such
indemnification by it is against public policy as
expressed in the Securities Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Farmington Hills, State of Michigan, on December 2,
1996.
COMPUWARE CORPORATION
By: /s/ Joseph A. Nathan
------------------------------------
Joseph A. Nathan, President,
Chief Operating Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Joseph A. Nathan and Peter
Karmanos, Jr. or either of them, his/her true and lawful attorneys-in-fact and
agents, each with full power of substitution for him/her and in his/her name,
place and stead, in any and all capacities, to sign any or all amendments
(including without limitation post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto each of said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he/she might or
could do in person, hereby ratifying and confirming all that any said
attorneys-in-fact and agents, or his/her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Date Capacity
- --------- ---- --------
<S> <C> <C>
/s/ Peter Karmanos, Jr. 12/2/96 Chairman of the Board, Chief
- ------------------------------------------- Executive Officer and Director
Peter Karmanos, Jr. (Principal Executive Officer)
/s/ Thomas Thewes Vice Chairman of the Board
- ------------------------------------------- 12/2/96 and Director
Thomas Thewes
/s/ W. James Prowse Senior Vice President
- ------------------------------------------- 12/2/96 and Director
W. James Prowse
/s/ Joseph A. Nathan President, Chief
- ------------------------------------------- 12/2/96 Operating Officer and Director
Joseph A. Nathan
/s/ Ralph A. Caponigro Senior Vice President, Chief
- ------------------------------------------- 12/2/96 Financial Officer, Treasurer
Ralph A. Caponigro (Principal Financial
Officer and Principal
Accounting Officer)
Director
- ------------------------------------------- ---------
William O. Grabe
Director
- ------------------------------------------- ---------
Bernard M. Goldsmith
/s/ G. Scott Romney 12/2/96 Director
- -------------------------------------------
G. Scott Romney
</TABLE>
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<TABLE>
<S> <C> <C>
Director
- ------------------------------------------- ---------
William R. Halling
Director
- ------------------------------------------- ---------
Lowell Weicker, Jr.
</TABLE>
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<PAGE> 9
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
- ------ -------
<S> <C>
4.1 Compuware Corporation Employee Stock Purchase Plan.
5 Opinion of Honigman Miller Schwartz and Cohn, counsel to the Registrant, as to
the legality of the shares of Common Stock being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Honigman Miller Schwartz and Cohn (included in the opinion filed as
Exhibit 5 to this Registration Statement).
24 Power of Attorney (included on the signature page of this Registration Statement).
</TABLE>
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<PAGE> 1
EXHIBIT 4.1
COMPUWARE CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
ADOPTED AUGUST 22, 1995
APPROVED BY SHAREHOLDERS AUGUST 22, 1995
1. PURPOSE.
(a) The purpose of the Compuware Corporation Employee Stock
Purchase Plan (the "Plan") is to provide a means by which employees of
Compuware Corporation, a Michigan corporation (the "Company"), and its
affiliates, as defined in subparagraph 2(a), which are designated as provided
in subparagraph 3(b), may be given an opportunity to purchase stock of the
Company.
(b) The Company, by means of the Plan, seeks to retain the
services of its employees, to secure and retain the services of new employees,
and to provide incentives for such persons to exert maximum efforts for the
success of the Company.
(c) The Company intends that the rights to purchase stock
of the Company granted under the Plan be considered options issued under an
"employee stock purchase plan" as that term is defined in Section 423(b) of the
Internal Revenue Code of 1986, as amended (the "Code").
2. DEFINITIONS.
(a) "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company, as those terms are
defined in Section 424(e) and (f), respectively, of the Code.
(b) "Total Compensation" shall mean a participant's wages,
salaries and other amounts received for personal services rendered to the
Company or an Affiliate as an employee, including amounts paid to the
participant as a commission; provided, however, that Total Compensation shall
not include amounts paid to a participant as a bonus or any contributions by
the Company or an Affiliate for or on account of any participant under any
employee benefit plan of the Company or Affiliate.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Board of
Directors (the "Board") of the Company unless and until the Board delegates
administration to a committee, as provided in subparagraph 3(c). Whether or
not the Board has delegated administration, the Board shall have the final
power to determine all questions of policy and expediency that may arise in the
administration of the Plan.
(b) The Board shall have the power, subject to, and within
the limitations of, the express provisions of the Plan:
(i) To determine when and how rights to purchase
stock of the Company shall be granted and the provisions of each offering of
such rights (which need not be identical).
(ii) To designate from time to time which Affiliates
of the Company shall be eligible to participate in the Plan.
(iii) To construe and interpret the Plan and rights
granted under it, and
<PAGE> 2
to establish, amend and revoke rules and regulations for its administration.
The Board, in the exercise of this power, may correct any defect, omission or
inconsistency in the Plan, in a manner and to the extent it shall deem
necessary or expedient to make the Plan fully effective.
(iv) To amend the Plan as provided in paragraph 14.
(v) Generally, to exercise such powers and to
perform such acts as the Board deems necessary or expedient to promote the best
interests of the Company.
(c) The Board may delegate administration of the Plan to a
committee composed of not fewer than two (2) members of the Board (the
"Committee"). If administration is delegated to a Committee, the Committee
shall have, in connection with the administration of the Plan, the powers
theretofore possessed by the Board, subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted from time to
time by the Board. The Board may abolish the Committee at any time and revest
in the Board the administration of the Plan.
4. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 13 relating to
adjustments upon changes in stock, the stock that may be sold pursuant to
rights granted under the Plan shall not exceed in the aggregate 1,000,000
shares of the Company's common stock. If any right granted under the Plan
shall for any reason terminate without having been exercised, the stock not
purchased under such right shall again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
5. GRANT OF RIGHTS; OFFERING.
The Board may from time to time grant or provide for the grant
of rights to purchase stock of the Company under the Plan to eligible employees
(the "Offering") on a date or dates (the "Offering Date(s)") selected by the
Board. Each Offering shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. The provisions of separate
Offerings need not be identical, but each Offering shall include (through
incorporation of the provisions of this Plan by reference in the Offering or
otherwise) the substance of the provisions contained in paragraphs 6 through 9,
inclusive.
6. ELIGIBILITY.
(a) Rights may be granted only to employees of the Company
or, as the Board may designate as provided in subparagraph 3(b), to employees
of any Affiliate. Except as provided in subparagraph 6(b), an employee of the
Company or any Affiliate shall not be eligible to be granted rights under a
particular Offering unless, on the relevant Offering Date, such employee has
been in the employ of the Company or any Affiliate for a continuous period of
at least 6 months preceding such grant. In addition, no employee of the
Company or any Affiliate shall be eligible to be granted rights under the Plan,
unless, on the relevant Offering Date, such employee's customary employment
with the Company or such Affiliate is at least 20 hours per week.
(b) Unless otherwise determined by the Board, each person
who, during the course of an Offering, first becomes an eligible employee of
the Company will, on the date or
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<PAGE> 3
dates determined by the Board specified in the relevant Offering, receive a
right under the next Offering.
(c) No employee shall be eligible for the grant of any
rights under the Plan if, immediately after any such rights are granted, such
employee owns stock possessing 5% or more of the total combined voting power or
value of all classes of stock of the Company or of any Affiliate. For purposes
of this subparagraph 6(c), the rules of Section 424(d) of the Code shall apply
in determining the stock ownership of any employee, and stock which such
employee may purchase under all outstanding rights and options shall be treated
as stock owned by such employee.
(d) An eligible employee may be granted rights under the
Plan only if such rights, together with any other rights granted under
"employee stock purchase plans" of the Company and any Affiliates, as specified
by Section 423(b)(8) of the Code, do not permit such employee's rights to
purchase stock of the Company or any Affiliate to accrue at a rate which
exceeds $25,000 of fair market value of such stock (determined at the time such
rights are granted) for each calendar year in which such rights are outstanding
at any time.
7. RIGHTS, PURCHASE PRICE.
(a) Rights granted under the Plan shall be exercisable
periodically during a twenty-seven (27) month period or such shorter period as
may be determined by the Board (an "Offering Period"). In connection with
each Offering made under this Plan, the Board may specify a maximum number of
shares which any employee may be granted the right to purchase pursuant to such
Offering. In addition, in connection with each such Offering, the Board may
specify a maximum aggregate number of shares which may be purchased pursuant to
such Offering. If the aggregate purchase of shares upon exercise of rights
granted under the Offering would exceed such maximum aggregate number, the
Board shall make a pro rata allocation of the shares available in as nearly a
uniform manner as shall be practicable and as it shall deem to be equitable.
(b) The purchase price of stock acquired pursuant to rights
granted under the Plan shall be not less than the lesser of:
(i) an amount equal to 85% of the fair market value
of the stock on the Offering Date; or
(ii) an amount equal to 85% of the fair market value
of the stock on the Exercise Date, as defined in paragraph 9.
8. PARTICIPATION; WITHDRAWAL; TERMINATION.
(a) An eligible employee may become a participant in the
Plan by delivering an agreement to the Company before the Offering Date for a
given Offering Period, in such form as the Company provides. Subject to the
limitation specified by Section 423(b) of the Code, each such agreement shall
authorize payroll deductions of up to 10% of such employee's Total Compensation
during the Offering Period. The payroll deductions made for each participant
shall be credited to an account for such participant under the Plan and shall
be deposited with the general funds of the Company. If permitted by the terms
of a particular Offering, during the Offering Period a participant may reduce
or terminate his or her payroll deductions. A participant may not increase or
begin such payroll deductions after the beginning of any Offering
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<PAGE> 4
Period. A participant may not make any additional payments into his or her
account. A participant who has elected to participate in a given Offering
Period shall automatically participate in each subsequent Offering Period on
the same terms and conditions, as modified by changes in the terms of such
Offering in accordance with the Plan, until the time that the participant
withdraws from an Offering Period under subparagraph 8(b) or is terminated from
further participation in the Plan under subparagraph 8(c).
(b) A participant may withdraw from an Offering (terminate
his or her payroll deductions) by delivering to the Company a notice of
withdrawal. Such withdrawal may be elected at any time prior to the end of an
Offering Period, except as provided by the Board in the Offering. Upon such
withdrawal from an Offering by a participant, the Company shall use all of such
participant's accumulated payroll deductions to purchase stock for the
participant on the next Exercise Date, and shall distribute to such participant
any accumulated payroll deduction which is less than the amount required to
purchase a whole share of Company stock, without interest, as soon as reasonably
possible after the end of such Offering Period. A participant's withdrawal from
an Offering will have no effect upon such participant's eligibility to
participate in any other Offerings under the Plan; provided, however, that the
participant satisfies the requirements of subparagraph 8(a) at the time of the
commencement of a future Offering.
(c) Rights granted pursuant to any Offering under the Plan
shall terminate immediately upon cessation of any participant's employment with
the Company or an Affiliate, unless the participant dies while in the employ of
the Company or an Affiliate, in which case, the person or persons to whom the
participant's rights under the Plan pass by will or by the laws of descent and
distribution shall continue as a participant until the next Exercise Date after
the date of death of the participant, except that no further payroll deductions
shall be added to the participant's account.
(d) Rights granted under the Plan shall not be transferable
except by will or by the laws of descent and distribution, and shall be
exercisable during the lifetime of the person to whom such rights are granted
only by such person.
9. EXERCISE.
(a) The last business day of each June and December (during
the Offering Period) or, alternatively, such other exercise dates determined by
the Board, as defined in the relevant Offering, shall be defined as an
"Exercise Date." On each Exercise Date, each participant's accumulated payroll
deductions (without any increase for interest) will be applied to the purchase
of whole shares of stock of the Company, up to the maximum number of shares
permitted pursuant to subparagraph 7(a), at the purchase priced stated in
subparagraph 7(b). No fractional shares shall be issued upon the exercise of
rights granted under the Plan. Any remaining balance in the participant's
account at the end of any Offering Period which is (i) sufficient to buy one or
more whole shares of stock of the Company, after the purchase of the maximum
number of shares the participant is able to purchase with his or her
accumulated payroll deductions, or (ii) less than the amount required to
purchase a whole share of Company stock, shall be held in the participant's
account and used for the purchase of shares of stock of the Company under any
subsequent right that he or she might be granted under the Plan.
(b) No rights granted under the Plan may be exercised to
any extent unless the Plan (including rights granted thereunder) is covered by
an effective registration statement
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<PAGE> 5
pursuant to the Securities Act of 1933, as amended. If, on an Exercise Date of
any Offering hereunder, the Plan is not so registered, no rights granted under
the Plan or any Offering shall be exercised and all payroll deductions
accumulated during the Offering Period shall be distributed to the
participants, without interest.
10. COVENANTS OF THE COMPANY.
(a) During the terms of the rights granted under the Plan,
the Company shall keep available at all times the number of shares of stock
required to satisfy such rights.
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may
be required to issue and sell shares of stock upon exercise of the rights
granted under the Plan; provided, however, that this undertaking shall not
require the Company to register or qualify under the Securities Act or any
state securities law either the Plan, any rights granted under the Plan or any
stock issued or issuable pursuant to any such rights. If the Company is unable
to obtain from any such regulatory commission or agency the authority which
counsel for the Company deems necessary for the lawful issuance and sale of
stock under the Plan, the Company shall be relieved from any liability for
failure to issue and sell stock upon exercise of such rights unless and until
such authority is obtained.
11. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to rights granted
under the Plan shall constitute general funds of the Company.
12. RIGHTS AS A SHAREHOLDER.
Neither a participant nor his or her successor shall be deemed
to be the holder of, or to have any rights of a holder with respect to, any
shares subject to such rights unless and until certificates representing such
shares shall have been issued.
13. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan,
or subject to any rights granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange
of shares, change in corporate structure or otherwise), the Board shall make
appropriate adjustments in the maximum number of shares subject to the Plan and
the number of shares and price per share of stock subject to outstanding
rights.
(b) In the event of: (1) a dissolution or liquidation of
the Company; (2) a merger or consolidation in which the Company is not the
surviving corporation; (3) a reverse merger in which the Company is the
surviving corporation but the shares of the Company's common stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise; or (4)
any other capital reorganization in which more than 50% of the shares of the
Company entitled to vote are exchanged, then, as determined by the Board in its
sole discretion, any surviving corporation shall assume outstanding rights or
substitute similar rights for those under the Plan, or such rights shall
continue in full force and effect, or such rights shall be exercised
immediately prior to such event,
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<PAGE> 6
unless another corporation assumes such rights or substitute similar rights for
those under the Plan or the Board determines in its sole direction that such
rights shall continue in full force and effect.
14. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend
the Plan. However, except as provided in paragraph 13 relating to adjustments
upon changes in stock, no amendment shall be effective unless approved by the
shareholders of the Company within 12 months before or after the adoption of
the amendment, where the amendment will:
(i) Increase the number of shares reserved for
rights under the Plan;
or (ii) Modify the provisions as to eligibility for
participation in the Plan;
or (iii) Modify the Plan in any other way to the extent
such modification requires shareholder approval
in order for the Plan to obtain employee stock
purchase plan treatment under Section 423 of
the Code.
It is expressly contemplated that the Board may amend
the Plan in any respect the Board deems necessary or advisable to provide
eligible employees with the maximum benefits provided or to be provided under
the provisions of the Code and the regulations promulgated thereunder relating
to employee stock purchase plans and/or to bring the Plan and/or rights granted
under it into compliance therewith.
(b) Rights and obligations under any rights granted before
amendment of the Plan shall not be impaired by any amendment of the Plan,
except with the consent of the person to whom such rights were granted.
15. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any
time. Unless sooner terminated, the Plan shall terminate on August 22, 2005. No
rights may be granted under the Plan while the Plan is suspended or after it is
terminated.
(b) Rights and obligations under any rights granted while
the Plan is in effect shall not be altered or impaired by suspension or
termination of the Plan, except with the consent of the person to whom such
rights were granted.
16. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board, but
no rights granted under the Plan shall be exercised unless and until the Plan
has been approved by the vote of the shareholders of the Company.
17. INDEMNIFICATION.
To the extent permitted, the Company shall indemnify and save
harmless the Board and Committee members who are officers, directors,
shareholders or employees of the Company against any liabilities incurred by
them in the exercise and performance of their powers and duties under the Plan.
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EXHIBIT 5
December 2, 1996
Compuware Corporation
31440 Northwestern Highway
Farmington Hills, Michigan 48334
Gentlemen:
We have represented Compuware Corporation, a Michigan coporation (the
"Company"), in connection with the preparation and filing of a Registration
Statement on Form S-8 (the "Registration Statement"), for the registration
under the Securities Act of 1933, as amended, of 1,000,000 shares of the common
stock, par value $.01 (the "Common Stock"), of the Company for sale and
issuance pursuant to the Company's Employee Stock Purchase Plan (the "Plan").
We have examined the proceedings proposed to be taken in connection with the
Plan and the sale and issuance of the Common Stock pursuant thereto and such
other records, documents and matters as we have deemed necessary or advisable
in order to enable us to render this opinion.
Based upon the above and taking into account such legal considerations
as we have deemed relevant, we are of the opinion that the shares of Common
Stock covered by the Regisration Statement to be issued and sold by the Company
have been duly authorized and, when issued and sold by the Company in the
manner referred to in the Registration Statement and the Plan, will be legally
and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ HONIGMAN MILLER SCHWARTZ AND COHN
HONIGMAN MILLER SCHWARTZ AND COHN
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<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Compuware Corporation on Form S-8 of our reports dated May 16, 1996, appearing
in the Annual Report on Form 10-K of Compuware Corporation for the year ended
March 31, 1996.
DELOITTE & TOUCHE LLP
November 27, 1996
Detroit, Michigan
