<PAGE> 1
As filed with the Securities and Exchange Commission on October 14, 1997
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 Fiscal 1998 Stock Option 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)
(248) 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, 4,000,000 $62.0625 $248,250,000 $75,227.27
$.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
October 6, 1997.
(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 (c) 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, 1997;
(b) Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997; and
(c) 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 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.
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<PAGE> 3
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 Fiscal 1998 Stock Option 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 Certificate of Amendment to Restated Articles of
Incorporation (incorporated by reference to Exhibit 3.5 to the
Registrant's Annual Report on Form 10-K for the year ended
March 31, 1997).
4.7 Registrant's Certificate of Amendment to Restated Articles of
Incorporation.
4.8 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 October 9,
1997.
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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<PAGE> 7
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. 10/9/97 Chairman of the Board, Chief
- ------------------------------------------- --------- Executive Officer and Director
Peter Karmanos, Jr. (Principal Executive Officer)
Vice Chairman of the Board
- ------------------------------------------- --------- and Director
Thomas Thewes
/s/ W. JAMES PROWSE 10/9/97 Senior Vice President
- ------------------------------------------- --------- and Director
W. James Prowse
/s/ JOSEPH A. NATHAN 10/9/97 President, Chief
- ------------------------------------------- --------- Operating Officer and Director
Joseph A. Nathan
/s/ RALPH A CAPONIGRO 10/9/97 Senior Vice President, Chief
- ------------------------------------------- --------- 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 10/9/97 Director
- ------------------------------------------- ---------
G. Scott Romney
</TABLE>
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<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
- ------ -------
<S> <C>
4.1 Compuware Corporation Fiscal 1998 Stock Option 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 Certificate of Amendment to Restated Articles of Incorporation (incorporated by reference to Exhibit
3.5 to the Registrant's Annual Report on Form 10-K for the year ended March 31, 1997).
4.7 Registrant's Certificate of Amendment to Restated Articles of Incorporation.
4.8 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).
</TABLE>
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<PAGE> 1
EXHIBIT 4.1
COMPUWARE CORPORATION
FISCAL 1998 STOCK OPTION PLAN
1. DEFINITIONS: As used herein, the following definitions shall
apply:
(a) "Plan" shall mean this Compuware Corporation Fiscal 1998 Stock
Option Plan.
(b) "Corporation" shall mean Compuware Corporation, a Michigan
corporation, or any successor thereof.
(c) "Committee" shall mean a committee meeting the standards of
Rule 16b-3 of the Rules and Regulations under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any similar successor rule, appointed
by the Board of Directors of the Corporation to administer the Plan or, if no
such committee is appointed, the Board of Directors as a whole.
(d) "Participant" shall mean any individual designated by the
Committee under Paragraph 6, for participation in the Plan.
(e) "Nonqualified Option" shall mean an option to purchase Common
Stock of the Corporation which meets the requirements set forth in the Plan but
does not meet the definition of an incentive stock option set forth in Section
422A of the Internal Revenue Code of 1986, as amended.
2. PURPOSE OF PLAN: The purpose of the Plan is (a) to provide
employees, including officers of the Corporation and its subsidiaries, with an
increased incentive to make significant and extraordinary contributions to the
long-term performance and growth of the Corporation and its subsidiaries, (b)
to join the interests of the employees with the interests of the shareholders
of the Corporation and (c) to facilitate attracting and retaining employees of
exceptional ability. For purposes of the Plan, a "subsidiary" is any
corporation in which the Corporation owns, directly or indirectly, stock
possessing more than fifty percent (50%) of the combined voting power of all
classes of stock.
3. ADMINISTRATION: The Plan shall be administered by the
Committee. Subject to the provisions of the Plan, the Committee shall
determine, from those eligible to be Participants under the Plan, the persons
to be granted stock options, the number of shares of stock subject to options
granted to each such person, and the terms and conditions of any stock options.
Subject to the provisions of the Plan, the Committee is authorized to interpret
the Plan, to promulgate, amend and rescind rules and regulations relating to
the Plan and to make all other determinations necessary or advisable for its
administration. Interpretation and construction of any provision of
1
<PAGE> 2
the Plan by the Committee shall be final and conclusive. Acts approved by a
majority of the members present at any meeting at which a quorum is present, or
acts unanimously approved in writing by the Committee, shall be the acts of the
Committee.
4. INDEMNIFICATION OF COMMITTEE MEMBERS: In addition to such
other rights of indemnification as they may have, the members of the Committee
shall be indemnified by the Corporation against the reasonable expenses,
including attorneys' fees, actually and necessarily incurred in connection with
the defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any option
granted hereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by the Board of Directors of the
Corporation) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such Committee member has
acted in bad faith; provided, however, that within sixty (60) days after
receipt of notice of institution of any such action, suit or proceeding a
Committee member shall offer the Corporation in writing the opportunity, at its
own cost, to handle and defend the same.
5. MAXIMUM NUMBER OF SHARES SUBJECT TO PLAN: The maximum number
of shares with respect to which stock options may be granted under the Plan
shall be 4,000,000 shares in the aggregate of Common Stock of the Corporation,
which may consist in whole or in part of the authorized and unissued or
reacquired Common Stock of the Corporation. If a stock option terminates for
any reason without having been fully exercised, the number of shares with
respect to which the stock option was not exercised at the time of its
expiration or termination shall again become available for the grant of stock
options under the Plan, unless the Plan shall have been terminated.
The number of shares subject to each outstanding stock option, the
option price with respect to outstanding stock options, and the aggregate
number of shares remaining available under the Plan shall be subject to such
adjustment as the Committee, in its discretion, deems appropriate to reflect
such events as stock dividends, stock splits, recapitalizations, mergers,
consolidations or reorganizations of or by the Corporation; provided, however,
that no fractional shares shall be issued pursuant to the Plan, no rights may
be granted under the Plan with respect to fractional shares and any fractional
shares resulting from such adjustments shall be eliminated from any outstanding
stock option.
6. PARTICIPANTS. The Committee shall determine and designate
from time to time, in its sole discretion, those employees, including officers
of the Corporation or any subsidiary, to whom stock options are to be granted
or awarded and who thereby become Participants under the Plan.
7. WRITTEN AGREEMENT: Each stock option shall be evidenced by a
written agreement between the Corporation and the Participant and shall contain
such provisions as may be approved by the Committee. Such agreements shall
constitute binding contracts between the Corporation
2
<PAGE> 3
and the Participant, and every Participant, upon acceptance of such agreement,
shall be bound by the terms and restrictions of the Plan and of such agreement.
The terms of each such agreement shall be in accordance with the Plan, but the
agreements may include such additional provisions and restrictions as are
determined by the Committee, provided that such additional provisions and
restrictions are not inconsistent with the terms of the Plan.
8. ALLOTMENT OF SHARES. The Committee shall determine and fix
the number of shares of stock with respect to which each Participant may be
granted stock options; provided, that no optionee shall be granted options to
purchase more than 1,000,000 shares under the Plan during any year.
9. STOCK OPTIONS: Each option granted under the Plan shall be a
Nonqualified Option.
10. STOCK OPTION PRICE: Subject to the rules set forth in this
Paragraph 10, at the time any stock option is granted, the Committee shall
establish the price per share for which the shares covered by the option may be
purchased; provided, that the option price shall not be less than 100% of the
fair market value of the stock on the date such option is granted. Fair market
value of a share shall be determined by the Committee and may be determined by
taking the closing selling price of the Corporation's stock on any exchange or
other market on which the shares of Common Stock of the Corporation shall be
traded on such date. The option price will be subject to adjustment in
accordance with the provisions of Paragraph 5 of the Plan.
11. PAYMENT OF STOCK OPTION PRICE: At the time of the exercise in
whole or in part of any stock option granted hereunder, payment of the option
price in full in cash or, with the consent of the Committee, in Common Stock of
the Corporation or by a promissory note payable to the order of the Corporation
which is acceptable to the Committee, shall be made by the Participant for all
shares so purchased. Such payment may, with the consent of the Committee, also
consist of a cash down payment and delivery of such a promissory note in the
amount of the unpaid exercise price. No Participant shall have the rights of a
shareholder of the Corporation under any stock option until the actual issuance
of shares to said Participant, and prior to such issuance no adjustment shall
be made for dividends, distributions or other rights in respect of such shares,
except as provided in Paragraph 5.
12. GRANTING AND EXERCISE OF STOCK OPTIONS: Each stock option
granted hereunder shall be exercisable at any such time or times or in any such
installments as may be determined by the Committee at the time of the grant.
A Participant may exercise a stock option, if then exercisable, in
whole or in part by delivery to the Corporation of written notice of the
exercise, in such form as the Committee may prescribe, accompanied by full
payment for the shares with respect to which the stock option is exercised.
Except as provided in Paragraph 16, stock options may be exercised only while
the Participant is an employee of the Corporation or a subsidiary.
3
<PAGE> 4
Successive stock options may be granted to the same Participant,
whether or not the stock option(s) previously granted to such Participant
remain unexercised. A Participant may exercise a stock option, if then
exercisable, notwithstanding that stock options previously granted to such
Participant remain unexercised.
13. TRANSFERABILITY OF STOCK OPTIONS: Except as otherwise
provided in this Paragraph 13 or to the extent determined by the Committee in
its sole discretion (either by resolution or by a provision in, or amendment
to, the option), (a) no option granted under the Plan to a Participant shall be
transferable by such Participant otherwise than (1) by will, or (2) by the laws
of descent and distribution or, (3) pursuant to a qualified domestic relations
order as defined in the Code or Title I of the Employee Retirement Income
Security Act, or the rules thereunder, and (b) such option shall be
exercisable, during the lifetime of the Participant, only by the Participant.
The Committee may, in its sole discretion, authorize all or a portion
of the options granted to an optionee to be transferred by such optionee to,
and to be exercised by, (i) the spouse, children or grandchildren of the
optionee ("Immediate Family Members"), (ii) a trust or trusts for the exclusive
benefit of such Immediate Family Members, (iii) a partnership in which such
Immediate Family Members are the only partners, or (iv) such other persons or
entities as determined by the Committee, in its sole discretion, on such terms
and conditions as the Committee, in its sole discretion, may determine;
provided that (y) the stock option agreement pursuant to which such options are
granted must be approved by the Committee and must expressly provide for
transferability in a manner consistent with this Paragraph 13, and (z)
subsequent transfers of transferred options shall be prohibited except for
transfers the original optionee would be permitted to make (if he or she were
still the owner of the option) in accordance with this Paragraph 13.
Following transfer, any such options shall continue to be subject to
the same terms and conditions as were applicable immediately before transfer,
provided that for purposes of Paragraphs 11, 12, 17, 18 and 22 the term
"Participant" shall be deemed to refer to the transferee. The events of
termination of employment of Paragraph 16 shall continue to be applied with
respect to the original optionee, following which the options shall be
exercisable by the transferee only to the extent, and for the periods,
specified in Paragraph 16. The original optionee shall remain subject to
withholding taxes and related requirements upon exercise provided in Paragraph
20. The Company shall have no obligation to provide any notice to any
transferee, including, without limitation, notice of any termination of the
option as a result of termination of the original optionee's employment with,
or other service to, the Company.
14. TERM OF STOCK OPTIONS: If not sooner terminated, each stock
option granted hereunder shall expire not more than 10 years from the date of
the granting thereof.
15. CONTINUATION OF EMPLOYMENT: The Committee may require, in its
discretion, that any Participant under the Plan to whom a stock option shall be
granted shall agree in writing as a condition of the granting of such stock
option to remain in the employ of the Corporation or
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<PAGE> 5
a subsidiary for a designated minimum period from the date of the granting of
such stock option as shall be fixed by the Committee.
16. TERMINATION OF EMPLOYMENT. If the employment of a Participant
by the Corporation or a subsidiary shall be terminated, the Committee may, in
its discretion, permit the exercise of stock options granted to such
Participant for a period not to extend beyond the expiration date with respect
to such Nonqualified Options. In no event, however, shall a stock option be
exercisable subsequent to its expiration date. Furthermore, except for (i) the
Participant's death or disability, or (ii) special circumstances approved by
the Committee, a stock option may only be exercised after termination of a
Participant's employment to the extent exercisable on the date of termination
of employment.
17. ACCELERATED VESTING: In the event that the Corporation is
acquired by a third party, regardless of the form of the acquisition (the
"Acquisition"), the options granted under this Plan shall automatically vest to
any Participant under the Plan who is employed by the Corporation or a
subsidiary on the effective date of the Acquisition. The "effective date"
shall be deemed to be the closing date of the Corporation's Acquisition. The
value per share of each such stock option to the Participant shall be the fair
market value of the Corporation's Common Stock on the effective date of the
Acquisition (less the exercise price).
18. INVESTMENT PURPOSE: If the Committee in its discretion
determines that as a matter of law such procedure is or may be desirable, it
may require a Participant upon any acquisition of stock hereunder by reason of
the exercise of stock options and as a condition to the Corporation's
obligation to deliver certificates representing such shares, to execute and
deliver to the Corporation a written statement, in a form satisfactory to the
Committee, representing and warranting that the Participant's acquisition of
shares of stock shall be for such person's own account, for investment and not
with a view to the resale or distribution thereof and that any subsequent offer
for sale or sale of any such shares shall be made either pursuant to (a) a
Registration Statement on an appropriate form under the Securities Act of 1933,
as amended (the "Securities Act"), which Registration Statement has become
effective and is current with respect to the shares being offered and sold, or
(b) a specific exemption from the registration requirements of the Securities
Act, but in claiming such exemption the Participant shall, prior to any offer
for sale or sale of such shares, obtain a favorable written opinion from
counsel for or approved by the Corporation as to the availability of such
exemption. The Corporation may endorse an appropriate legend referring to the
foregoing restriction upon the certificate or certificates representing any
shares issued or transferred to the Participant under this Plan.
19. RIGHTS TO CONTINUED EMPLOYMENT. Nothing contained in the
Plan or in any stock option granted or awarded pursuant to the Plan, nor any
action taken by the Committee hereunder, shall confer upon any Participant any
right with respect to continuation of employment by the Corporation or a
subsidiary as an employee nor interfere in any way with the right of the
Corporation or a subsidiary to terminate such person's employment as an
employee at any time with or without cause.
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<PAGE> 6
20. WITHHOLDING PAYMENTS: If upon the exercise of a Nonqualified
Option there shall be payable by the Corporation or a subsidiary any amount for
income tax withholding, in the Committee's sole discretion, either the
Corporation shall appropriately reduce the amount of stock or cash to be paid
to the Participant or the Participant shall pay such amount to the Corporation
or subsidiary to reimburse it for such income tax withholding. The Committee
may in its sole discretion, permit Participants to satisfy such withholding
obligations in whole or in part, by electing to have the amount of Common Stock
delivered or deliverable by the Corporation upon exercise of a stock option
appropriately reduced, or by electing to tender Common Stock back to the
Corporation subsequent to exercise of a stock option, to reimburse the
Corporation for such income tax withholding, subject to such rules and
regulations as the Committee may adopt. The Committee may make such other
arrangements with respect to income tax withholding as it shall determine.
21. EFFECTIVENESS OF PLAN: The Plan shall be effective as of
August 26, 1997; provided that the shareholders of the Corporation approve the
Plan within 12 months of that date. Stock options may be granted or awarded
prior to shareholder approval of the Plan, but each such stock option grant or
award shall be subject to shareholder approval of the Plan. No stock option
may be exercised prior to shareholder approval.
22. TERMINATION, DURATION AND AMENDMENTS OF PLAN: The Plan may be
abandoned or terminated at any time by the Board of Directors of the
Corporation. Unless sooner terminated, the Plan shall terminate on the date
ten years after its adoption by the Board of Directors and no stock options may
be granted or awarded thereafter. The termination of the Plan shall not affect
the validity of any stock option outstanding on the date of termination.
For the purpose of conforming to any changes in applicable law or
governmental regulations, or for any other lawful purpose, the Board of
Directors shall have the right, with or without approval of the shareholders of
the Corporation, to amend or revise the terms of the Plan at any time;
provided, however, that no such amendment or revision shall (i) increase the
maximum number of shares in the aggregate which are subject to the Plan
(subject, however, to the provisions of Paragraph 5), change the class of
persons eligible to be Participants under the Plan or materially increase the
benefits accruing to Participants under the Plan, without approval or
ratification of the shareholders of the Corporation; or (ii) change the stock
option price (except as contemplated by Paragraph 5) or alter or impair any
stock option which shall have been previously granted or awarded under the
Plan, without the consent of the holder thereof.
As adopted by the Shareholders on August 26, 1997, effective as
of August 26, 1997.
6
<PAGE> 1
EXHIBIT 4.7
<TABLE>
<S><C>
MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
Date Received FILED
AUG 29 1997
SEP 02 1997
Administrator
MI DEPARTMENT OF CONSUMER & INDUSTRY SERVICES
CORPORATION, SECURITIES & LAND DEVELOPMENT BUREAU
Name Barbara J. Kovach, Esq.
Compuware Corporation
Address
31440 Northwestern Highway
City State ZIP Code
Farmington Hills Michigan 48334-2564 EFFECTIVE DATE:
DOCUMENT WILL BE RETURNED TO NAME AND ADDRESS INDICATED ABOVE
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
FOR USE BY DOMESTIC CORPORATIONS
(Please read information and instructions on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit corporations), or Act 162, Public Act of 1982
(nonprofit corporations), the undersigned corporation executes the following Certificate:
1. The present name of the corporation is: COMPUWARE CORPORATION
2. The corporation identification number (CID) assigned by the Bureau is: 0 0 8 - 3 7 5
3. The location of its registered office is:
31440 Northwestern Highway Farmington Hills , Michigan 48334-2564
-------------------------------------------------------------------------------- ------------------------
(Street Address) (City) (ZIP Code)
4. Article III of the Articles of Incorporation is hereby amended to read as follows:
----------------------
The total authorized capital stock is:
1. Common Shares 400,000,000 $.01 Par Value.
Preferred Shares 5,000,000 Class A, No Par Value.
[The remaining paragraphs of Articles III are unchanged.]
</TABLE>
SEAL APPEARS ONLY ON ORIGINAL
<PAGE> 2
5. COMPLETE SECTION (a) IF THE AMENDMENT WAS ADOPTED BY THE UNANIMOUS
CONSENT OF THE INCORPORATOR(S) BEFORE THE FIRST MEETING OF THE BOARD OF
DIRECTORS OR TRUSTEES, OTHERWISE, COMPLETE SECTION (b)
a. / / The foregoing amendment to the Articles of Incorporation was duly
adopted on the ______ day of _______, 19 ___, in accordance with the
provisions of the Act by the unanimous consent of the incorporator(s)
before the first meeting of the board of directors or trustees.
Signed this _____ day of ______________________, 19 ______.
__________________________________________ __________________________________
(Signature) (Signature)
__________________________________________ __________________________________
(Type or Print Name) (Type or Print Name)
__________________________________________ __________________________________
(Signature) (Signature)
__________________________________________ __________________________________
(Type or Print Name) (Type or Print Name)
b. / / The foregoing amendment to the Articles of Incorporation was duly
adopted on the 26th day of August, 1997. The amendment: (check one of
the following)
/X/ was duly adopted in accordance with Section 611(2) of the Act
by the vote of the shareholders if a profit corporation, or by
the vote of the shareholders or members if a nonprofit
corporation, or by the vote of the directors if a nonprofit
corporation organized on a nonstock directorship basis. The
necessary votes were cast in favor of the amendment.
/ / was duly adopted by the written consent of all the directors
pursuant to Section 525 of the Act and the corporation is a
nonprofit corporation organized on a nonstock directorship
basis.
/ / was duly adopted by the written consent of the shareholders or
members having not less than the minimum number of votes
required by statute in accordance with Section 407 (1) and (2)
of the Act if a nonprofit corporation, and Section 407 (1) of
the Act if a profit corporation. Written notice to shareholders
or member who have not consented in writing has been given.
(Note: Written consent by less than all of the shareholders or
members is permitted only if such provision appears in the
Articles of Incorporation.)
/ / was duly adopted by the written consent of all the shareholders
or members entitled to vote in accordance with Section 407 (3)
of the Act if a non-profit corporation, and Section 407 (2) of
the Act if a profit corporation.
Signed this 27th day of August, 1997
By /s/ Thomas Costello, Jr.
-------------------------------------
(Only signature of: President,
Vice-President, Chairperson and
Vice-Chairperson)
Thomas Costello, Jr. Vice President/Secretary
-----------------------------------------------
(Type or Print Name) (Type or Print Title)
SEAL APPEARS ONLY ON ORIGINAL
<PAGE> 1
EXHIBIT 5
October 14, 1997
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 4,000,000 shares of the common
stock, par value $.01 (the "Common Stock"), of the Company for sale and
issuance pursuant to the Company's Fiscal 1998 Stock Option 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
<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 5,
1997, appearing in the Annual Report on Form 10-K of Compuware Corporation for
the year ended March 31, 1997.
/s/ DELOITTE & TOUCHE, L.L.P.
Detroit, Michigan
October 9, 1997
