<PAGE> 1
As filed with the Securities and Exchange Commission on June 2, 1999
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 1999 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, 8,000,000 $28.81 $230,500,000 $64,079
$.01 par value
per share (the
"Common Stock")(2)
</TABLE>
<PAGE> 2
(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 May 25, 1999.
(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.
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 Registration Statement on Form S-1,
filed with the Securities and Exchange Commission on
April 12, 1999 (Commission File No. 333-76097),
including all amendments thereto;
(b) Registrant's Quarterly Reports on Form 10-Q for the
quarters ended June 30, 1998, September 30, 1998 and
December 31, 1998; and
<PAGE> 3
(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.
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.
<PAGE> 4
Not applicable.
ITEM 8. EXHIBITS.
4.1 Compuware Corporation Fiscal 1999 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 (incorporated by reference to Exhibit 4.7 to the
Registrant's Registration Statement on Form S-8, Registration
No. 33-37873).
4.8 Registrant's Certificate of Amendment to Restated Articles of
Incorporation.
4.9 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).
<PAGE> 5
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;
(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.
<PAGE> 6
(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, 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 June 1, 1999
COMPUWARE CORPORATION
/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,
<PAGE> 7
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.
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. June 1, 1999 Chairman of the Board,
- ----------------------------- Chief Executive Officer
Peter Karmanos, Jr. and Director (Principal
Executive Officer)
- ----------------------------- ------------ Vice Chairman of the Board
Thomas Thewes and Director
/s/ Joseph A. Nathan June 1, 1999 President, Chief
- ----------------------------- Operating Officer
Joseph A. Nathan and Director
/s/ Laura L. Fournier June 1, 1999 Senior Vice President, Chief
- ----------------------------- Financial Officer, Treasurer
(Principal Financial
Laura L. Fournier Office and Principal
Accounting Officer)
/s/ Elizabeth A. Chappel June 1, 1999 Director
- -----------------------------
Elizabeth A. Chappel
/s/ Elaine K. Didier June 1, 1999 Director
- -----------------------------
Elaine K. Didier
/s/ William O. Grabe June 1, 1999 Director
- -----------------------------
William O. Grabe
/s/ Bernard M. Goldsmith June 1, 1999 Director
- -----------------------------
Bernard M. Goldsmith
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ William R. Halling June 1, 1999 Director
- -----------------------------
William R. Halling
Director
- ----------------------------- -------------
W. James Prowse
/s/ G. Scott Romney June 1, 1999 Director
- -----------------------------
G. Scott Romney
Director
- ----------------------------- -------------
Lowell Weicker, Jr.
</TABLE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------- -------
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).
<PAGE> 9
4.7 Registrant's Certificate of Amendment to Restated Articles of
Incorporation (incorporated by reference to Exhibit 4.7 to the
Registrant's Registration Statement on Form S-8, Registration
No. 33-37873).
4.8 Registrant's Certificate of Amendment to Restated Articles of
Incorporation.
4.9 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).
<PAGE> 1
EXHIBIT 4.1
COMPUWARE CORPORATION
FISCAL 1999 STOCK OPTION PLAN
1. DEFINITIONS: As used herein, the following definitions shall
apply:
(a) "Plan" shall mean this Compuware Corporation Fiscal 1999 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 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
1
<PAGE> 2
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 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
2
<PAGE> 3
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 in employee of the Corporation or a subsidiary.
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
3
<PAGE> 4
granting of such stock option to remain in the employ of the Corporation or 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.
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.
4
<PAGE> 5
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 of 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 25, 1998, effective as of
August 25, 1998.
5
<PAGE> 1
EXHIBIT 4.8
MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION SECURITIES AND LAND DEVELOPMENT BUREAU
Date Received (FOR BUREAU USE ONLY)
MAR 10 1999
FILED
MAR 12 1999
Name Administrator
JANIS K. KUJAN, LEGAL ASSISTANT CORP., SECURITIES & LAND DEV. BUREAU
Honigman Miller Schwartz and Cohn
Address
2290 First National Building 660 Woodward Avenue
City State Zip Code
Detroit Michigan 48226-3583 EFFECTIVE DATE:
DOCUMENT WILL BE RETURNED TO THE NAME AND ADDRESS YOU ENTER ABOVE
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
FOR USE BY DOMESTIC PROFIT AND NONPROFIT CORPORATIONS
(Please read information and instructions on the last page)
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), or Act 162, Public Acts of 1982 (nonprofit corporations), the
undersigned corporation executes the following Certificate:
1. The present name of the corporation is:
COMPUWARE CORPORATION
2. The identification number assigned by the Bureau is: 008375
3. The location of the 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 shares:
1. Common Shares 1,600,000,000
Preferred Shares -0-
2. Statement of all or any of the relative rights, preferences and
limitations of the shares of each class is as follows: None
<PAGE> 2
5. (FOR AMENDMENTS ADOPTED BY UNANIMOUS CONSENT OF INCORPORATORS BEFORE THE
FIRST MEETING OF THE BOARD OF DIRECTORS OR TRUSTEES.)
The foregoing amendment to the Articles of Incorporation was duly adopted on the
_______________ day of _____________________, 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
-------- ---------------------------
- ---------------------------------- ---------------------------------
(Signature) (Signature)
- ---------------------------------- ---------------------------------
(Type or Print Name) (Type or Print Name)
- ---------------------------------- ---------------------------------
(Signature) (Signature)
- ---------------------------------- ---------------------------------
(Type or Print Name) (Type or Print Name)
6. (FOR PROFIT CORPORATIONS, AND FOR NONPROFIT CORPORATIONS WHOSE ARTICLES STATE
THE CORPORATION IS ORGANIZED ON A STOCK OR ON A MEMBERSHIP BASIS.)
The foregoing amendment to the Articles of Incorporation was duly adopted on
the 25th day of February, 1999 by the shareholders if a profit corporation, or
by the shareholders or members if a nonprofit corporation (check one of the
following)
[X] at a meeting. The necessary votes were cast in favor of the amendment.
[ ] by written consent of the shareholders or members having not less than the
minimum number of votes required by statute in accordance with Section
407(l) and (2) of the Act if a nonprofit corporation, or Section 407(1)
of the Act if a profit corporation. Written notice to shareholders or
members 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.)
[ ] by written consent of all the shareholders or members entitled to vote in
accordance with section 407(3) of the Act if a nonprofit corporation, or
Section 407(2) of the Act if a profit corporation.
Signed this day of March, 1999
-------------
By Thomas Costello, Jr.
----------------------------------------------------------
(Signature of President, Vice-President, Chairperson or
Vice-Chairperson)
Thomas Costello, Jr. Vice-President/Secretary
--------------------------------------------------------------
(Type or Print Name) (Type or Print Title)
<PAGE> 1
EXHIBIT 5
June 2, 1999
Compuware Corporation
31440 Northwestern Highway
Farmington Hills, Michigan 48334
Gentlemen:
We have represented Compuware Corporation, a Michigan corporation (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 8,000,000 shares of the common stock,
par value $.01 (the "Common Stock"), of the Company for sale and issuance
pursuant to the Company's Fiscal 1999 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 Registration 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 4, 1998
(March 1, 1999 as to the effects of the stock split described in Note 15), which
appear in Amendment No. 1 to Registration Statement No. 333-76097 of Compuware
Corporation on Form S-1 dated May 5, 1999.
/s/ DELOITTE & TOUCHE LLP
Detroit, Michigan
May 25, 1999
