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EXHIBIT D
COMPUWARE CORPORATION
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT ("Agreement") is made as of June 9, 1998,
among Compuware Corporation, a Michigan corporation ("Compuware") Xxxxx
Xxxxxxxx, and Xxxxxx Xxxxxx, all of whom hereby agree that:
A. The parties to this agreement are also parties to a certain Voting
Agreement dated November 5, 1992, as amended, which affects certain shares of
Compuware stock owned by Xx. Xxxxxx; and
B. Xx. Xxxxxx is currently contemplating making a charitable gift of
200,000 shares from his stock that is subject to the 1992 agreement, as amended,
and desires to ensure that these shares will not be considered property
attributable to him for estate tax purposes at any time after completing the
gift; and
C. The form of gift contemplated by Xx. Xxxxxx to ensure these shares
will not be considered property attributable to him for estate tax purposes at
any time after completing the gift is not permissible under the 1992 agreement
without Mr. Karmanos's consent; and
D. Mr. Karmanos is not willing to consent to an unrestricted release of
these 200,000 shares from the 1992 agreement unless the terms of this agreement
are substituted in place of the terms of the 1992 agreement; and
E. To ensure that these shares will not be considered property
attributable to him for estate tax purposes at any time after completing the
gift, and to accomplish the charitable purposes of the recipient, Xx. Xxxxxx is
willing to accept the terms of this Agreement on his own behalf and in
limitation of the rights of any subsequent owners of the shares; and
F. Compuware is willing to be a party to this Agreement to help
effectuate the desire of Xx. Xxxxxx and Mr. Karmanos.
With that in mind, the parties wish to enter into an agreement which for
a period of time will govern the manner in which the 200,000 shares to be
transferred by Xx. Xxxxxx will be voted, and limit subsequent owners' ability to
transfer them.
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NOW, THEREFORE, the parties agree that Mr. Karmanos consents to the
release of 200,000 shares now owned by Xx. Xxxxxx and subject to the provisions
of the 1992 agreement, subject to the application of the terms of this Agreement
to such shares as follows:
1. Definitions.
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As used in this Agreement, the term "Stock" shall mean those 200,000
shares of Compuware stock to be transferred by Xx. Xxxxxx to The TT Charitable
Annuity Lead Trust ua 6/9/98, which transfer Mr. Karmanos in all capacities
hereby approves.
2. Voting Agreement and Transfer Restrictions.
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(A) Xx. Xxxxxx hereby irrevocably makes, constitutes and appoints Xxxxx
Xxxxxxxx, Jr. as his proxy and hereby authorizes and grants to Mr. Karmanos the
exclusive right to represent and to vote the Stock, in Mr. Karmanos's sole
discretion, with respect to any matters which may properly come before any
meeting of, or be considered by the shareholders of Compuware, and on which a
shareholder is entitled to vote or act. This proxy is coupled with an interest
and shall terminate on June 9, 2008. Xx. Xxxxxx further agrees for himself and
his successors in interest to the shares transferred hereunder may not be
transferred by The TT Charitable Annuity Lead Trust ua 6/9/98 except in the
minimal amount reasonably determined by the Trustee thereof to be necessary to
satisfy the required annuity distributions of the Trust from time to time;
provided, however, that the Trustee thereof may withdraw up to 25,000 shares
from the restrictions hereunder effective on June 9th of each year from 2002
through 2007 inclusive. This withdrawal may be effected upon thirty days'
advance notice to Mr. Karmanos.
(B) In the event of Mr. Karmanos's death or mental incompetency prior to
January 24, 2005, all voting rights (and notice requirements) set forth above
shall inure to the benefit of, and be exercisable by, Mr. Karmanos's designee as
successor; provided that Mr. Karmanos shall not be permitted to designate any
person whose enjoyment of the Stock's voting rights would be attributable to Xx.
Xxxxxx as a "retention of the right to vote" the Stock for purposes of
Section 2036(b) of the Internal Revenue Code of 1986, as amended, and
regulations thereunder. If no
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individual has been designated by Mr. Karmanos, then the Compuware Board of
Directors may appoint a successor to Mr. Karmanos who shall be the designee ex
officio, subject only to the same limitation on appropriate designees that
applies to Mr. Karmanos above.
(C) In furtherance of the foregoing, Xx. Xxxxxx agrees to execute and
deliver to Mr. Karmanos, simultaneously with its execution of this Agreement, an
irrevocable proxy, in the form of exhibit A attached hereto.
(D) All certificates evidencing shares of Stock covered by this
Agreement shall have endorsed thereon by Compuware this statement:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED
AS TO TRANSFER IN ACCORDANCE WITH, AND ARE OTHERWISE SUBJECT TO THE
TERMS OF, A SHAREHOLDER AGREEMENT DATED AS OF JUNE 9, 1998, (THE
"AGREEMENT") AMONG COMPUWARE CORPORATION AND CERTAIN INDIVIDUALS, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF COMPUWARE
CORPORATION.
(E) Except for the transfer and assignment of the proxy from Mr.
Karmanos to an appropriate designee as provided above, the proxy described above
is not assignable or transferrable.
3. Compuware Agreement.
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Compuware agrees it will not recognize on the stock transfer records of
Compuware any Transfer of any shares of Stock covered by Paragraph 2 which is
contrary to the terms of such paragraph. Compuware further agrees to legend any
and all stock certificates which evidence such shares of Stock with the above
legend before the issuance of any such certificate(s).
4. Miscellaneous.
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(A) This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof and shall be binding upon the parties and
their respective heirs, personal representatives, successors and assigns unless
otherwise restricted herein.
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(B) The provisions of this Agreement will be deemed severable, and, if
any part of any provision is held illegal, void, invalid or unenforceable under
applicable law, such provision shall be changed to the extent reasonably
necessary to make the provision, as so changed, legal, valid, binding and
enforceable. In the event any provision of this Agreement shall be invalid,
illegal or unenforceable, then the validity, legality, and enforceability of the
remaining provisions hereof shall not in any way be affected or impaired
thereby.
(C) This Agreement shall be governed by and construed in accordance with
the laws of the State of Michigan.
(D) This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto, and may only be modified by the
written agreement of Mr. Karmanos and the shareholder of record of affected
shares.
IN WITNESS WHEREOF, the parties have signed this Agreement as
of the date written above.
COMPUWARE
CORPORATION XXXXX XXXXXXXX, JR. XXXXXX XXXXXX
Xxxxx Xxxxxxxx, Jr. Xxxxx Xxxxxxxx, Jr. Xxxxxx Xxxxxx
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By: Xxxxx Xxxxxxxx, Jr.
Its: Chairman
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EXHIBIT A
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IRREVOCABLE PROXY
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KNOW ALL MEN BY THESE PRESENTS, that the undersigned Xxxxxx Xxxxxx (a)
hereby irrevocably makes, constitutes and appoints Xxxxx Xxxxxxxx, Jr. as proxy
and (b) hereby authorizes and grants to said proxy, the exclusive right to
represent and to vote the shares of common stock of Compuware Corporation, a
Michigan corporation ("Company") transferred by Xx. Xxxxxx to The TT Charitable
Annuity Lead Trust ua 6/9/98 in the discretion of said proxy, with respect to
any matters which may properly come before any meeting of, or be considered by,
the shareholders of the Company and on which the shareholders of record are
entitled to vote or act.
This Proxy is coupled with an interest and is given pursuant to the
terms of a Shareholder Agreement dated as of June 9, 1998, ("Agreement"),
between Mr. Karmanos as the proxy and Xx. Xxxxxx. This Proxy shall cease to be
effective and shall terminate on the earlier to occur of (a) June 9, 2008, or
(b) a termination of the Shareholder Agreement.
IN WITNESS WHEREOF, this Proxy has been duly executed and delivered
as of the 9th day of June, 1998.
Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
