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EXHIBIT 4.8
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of February 23, 1999, by and among Compuware Corporation, a
Michigan corporation (the "Company"), Xxxxxxx X. Xxxx, Xxxxxx X. Xxxx, Xxxxx X.
Xxxxxxxx 1999 Qualified Annuity Trust, Xxxxxxx X. Xxxx Revocable Trust dated
January 23, 1995, Xxxx X. Xxxx 1999 Qualified Annuity Trust and Xxxx X. Xxxx
Revocable Trust dated January 23, 1995 (each, individually, a "Shareholder", and
collectively, the "Shareholders").
RECITALS
A. Pursuant to the Agreement and Plan of Merger dated February 23,
1999 by and among the Company, CPWRT1, Inc., a Michigan corporation, CPWRT2,
Inc., a Michigan corporation, M.I.S. International, Inc., a Michigan
corporation, Simco International, Inc., a Michigan corporation, Autoflex, Inc.,
a Michigan corporation and the Shareholders (the "Merger Agreement"), the
Shareholders received 510,932 shares of Company common stock, par value $0.01
per share (the "Shares").
B. The Shareholders desire to have liquidity with respect to the Shares
they received in connection with the Mergers (as defined in the Merger
Agreement).
C. To facilitate such sales of the Shares, subject to the terms of the
Merger Agreement, the Company has agreed to afford the Shareholders certain
registration rights with respect to the Shares.
THEREFORE, in consideration of the promises and the mutual covenants
and agreements that the Merger Agreement contains and other good and valuable
consideration, receipt of which the parties hereby acknowledge, the parties
agree as follows:
1. Definitions. For purposes of this Agreement, the following term
shall have the following meanings:
"Common Stock" means the Company's common stock, par value $0.01
per share.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Person" means an individual, partnership, corporation, limited
liability company, trust or other entity, or a government or agency or
political subdivision thereof.
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"Prospectus" means the prospectus included in any Registration
Statement at the time the same becomes effective, as amended or
supplemented by any prospectus supplement, including post-effective
amendments and all material incorporated by reference in the
prospectus.
"Registrable Securities" means (a) the Shares, and (b) the
Common Stock issued with respect to the Shares by way of stock
dividend, stock split or in connection with a combination of stock,
recapitalization, merger, consolidation or other reorganization;
provided, however, that a Share shall be a Registrable Security only
for so long as the Share continues to be a Restricted Security. For
purposes of this Agreement, each Share shall be a Restricted Security
at the date of this Agreement. A Share shall cease to be a Restricted
Security on the earliest of the following dates: (i) the date the
Company has effectively registered the Share under the Securities Act
and the Shareholder who owns it has disposed of the Share in accordance
with the Registration Statement covering the Share, or (ii) the date
the Shareholder who owns it shall be eligible to sell the Share to the
public pursuant to Rule 144 (or any similar provisions then in force)
under the Securities Act or (iii) the date the Shareholder has
otherwise transferred the Share (except for transfers complying with
the provisions of Paragraph 7(i)).
"Registration Statement" means any registration statement of
the Company which covers any of the Registrable Securities pursuant to
the provisions of this Agreement, including all pre-effective
amendments and post-effective amendments thereto, the Prospectus and
supplements thereto, all exhibits and all material incorporated by
reference in the registration statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
2. Registration. Within 45 days after the date hereof, the
Company shall prepare and file a Registration Statement providing for the sale
of the Registrable Securities by the Shareholders pursuant to Rule 415 of the
Securities Act and/or any similar rule that may be adopted by the SEC; provided,
however, that none of the Shareholders shall sell, transfer, pledge or otherwise
dispose of any Registrable Securities (a) prior to the date on which financial
results covering at least thirty (30) days of post-Effective Date combined
operations of the Company, M.I.S. International, Inc. and Simco International,
Inc. have been published by the Company, except as otherwise permitted by the
Merger Agreement; or (b) if such sale, transfer, pledge or disposition would
prevent the Mergers from being accounted for as a pooling-of-interests.
Notwithstanding the foregoing, for not more than a total of ninety (90) days
during any twelve month period, the Company shall not be obligated to prepare
and file, or be prevented from delaying or abandoning, the Registration
Statement required hereunder: (a) if the Company shall furnish to the
Shareholders a certificate signed by an officer of the Company stating that, in
the
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good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company for such registration to be effected at
such time, in which event the Company shall have the right to defer the filing
of the Registration Statement for a period which is not longer than the period
its officers and directors are restricted by Company policy or directives from
trading in Company common stock, provided, however, in no event shall the
Shareholders be prevented from making sales of Registrable Securities pursuant
to the Registration Statement for more than 90 days in any twelve month period;
or (b) if the Company shall furnish to the Shareholders a certificate signed by
an officer of the Company stating that, in the good faith judgment of the Board
of Directors of the Company, it would be seriously detrimental to the Company
for such registration to be continued at any time after the filing of the
Registration Statement, in which event the Company shall have the right to
suspend the registration for a period which is not longer than the period its
officers and directors are restricted by Company policy or directives from
trading in Common Stock, provided, however, in no event shall the Shareholders
be prevented from making sales of Registrable Securities pursuant to the
Registration Statement for more than 90 days in any twelve month period.
3. Registration Procedures. In connection with the Company's
registration obligations pursuant to Section 2 of this Agreement, the Company
shall use its reasonable efforts to effect the registration and sale of the
Registrable Securities in accordance with the method of distribution described
on the attached Schedule 1 and, pursuant thereto, the Company shall as
expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement and
use its reasonable efforts to cause such Registration Statement to
become effective;
(b) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep such Registration
Statement continuously effective for a period expiring on the earlier
of (i) the date on which all of the Registrable Securities covered by
the Registration Statement have been sold pursuant thereto or (ii) the
date on which all Registrable Securities are eligible for sale pursuant
to Rule 144 under the Securities Act;
(c) furnish to the participating Shareholders, without charge,
at least one signed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, all documents incorporated by reference therein and all
exhibits (including those incorporated by reference);
(d) deliver to the participating Shareholders, without charge,
as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as they may
reasonably request, but only while the Company is required to cause the
Registration Statement to remain effective;
(e) use its reasonable efforts to register or qualify such
Registrable Securities
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for offer and sale under the securities or blue sky laws of such U. S.
States or possessions as any participating Shareholder may reasonably
request (the "Blue Sky Laws") and do any and all other acts or things
necessary or advisable to enable such participating Shareholders to
consummate the disposition in such jurisdictions of Registrable
Securities owned by such participating Shareholders; provided, however,
that in no event shall the Company be obligated to qualify generally to
do business in any jurisdiction where it is not now qualified or to
take any action which would subject it to the service of process in
suits other than those arising out of the offer or sale of the
securities covered by such Registration Statement in any jurisdictions
where it is not now so subject;
(f) cooperate with the participating Shareholders to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, free of any and all
restrictive legends, which certificates shall be in such denominations
and registered in such names as the Shareholders may request;
(g) use its reasonable efforts to cause all Registrable
Securities covered by the Registration Statement to be listed on The
Nasdaq Stock Market National Market System (or any other market on
which the Common Stock is then listed);
(h) notify each seller of such Registrable Securities at any
time when a Prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a result of
which the Prospectus included in such Registration Statement contains
an untrue statement of a material fact or omits any fact necessary to
make the statements therein not misleading, and, at the request of any
such seller, the Company shall prepare a supplement or amendment to
such Prospectus so that, as thereafter delivered to the purchasers of
such Registrable Securities, such Prospectus shall not contain any
untrue statement of a material fact or omit to state any fact necessary
to make the statements therein not misleading.
(i) advise each seller of such Registrable Securities,
promptly after it shall receive notice or obtain knowledge thereof, of
the issuance of any stop order by the SEC suspending the effectiveness
of such Registration Statement or the initiation or threatening of any
proceeding for such purpose and promptly use all reasonable efforts to
prevent the issuance of any stop order or to obtain its withdrawal if
such stop order should be issued; and
(j) make available for inspection by the participating
Shareholders and any attorney or accountant retained by the
participating Shareholders all financial and other records, pertinent
corporate documents and properties of the Company; provided that such
Persons shall keep confidential any records, information or documents
of the Company unless a court or administrative agency requires the
disclosure of the records, information or documents or such records,
information or documents (A) become generally available to the public
other than as result of a disclosure by any such Persons,
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(B) were available to such Persons on a non-confidential basis prior to
the disclosure of such records, information or documents pursuant to
this Agreement, or (C) become available to such Persons on a
non-confidential basis from a source other than the Company or its
agents, advisors or representatives.
The Company may require the participating Shareholders to furnish to
the Company information regarding the participating Shareholders and the
distribution of the Registrable Securities as the Company may from time to time
reasonably request in writing and as necessary for the registration of the
Shares.
The Shareholders agree that, upon receipt of any notice from the
Company of the happening of any of the following: (i) the SEC's issuance of any
stop order denying or suspending the effectiveness of the Registration Statement
or the initiation or threatening of any proceeding for that purpose, (ii) the
Company's receipt of any stop order denying registration or suspending the
qualification of the Registrable Securities for sale or the initiation or
threatening of any proceeding for such purpose, (iii) the happening of any event
which makes any statement made in the Registration Statement, the Prospectus or
any document incorporated by reference therein untrue or which requires any
change in the Registration Statement, the Prospectus or any document
incorporated by reference therein to make the statements not include an untrue
statement of material fact or not omit any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing, the Shareholders shall discontinue the
disposition of Registrable Securities until the participating Shareholders
receive a supplemented or amended Prospectus from the Company or until the
Company advises the participating Shareholders in writing that the participating
Shareholders may resume the use of the Prospectus, and have received copies of
any additional or supplemental filings which are incorporated by reference in
the Prospectus. If the Company so directs, the Shareholders will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in the Shareholders' possession, of the Prospectus covering the Registrable
Securities at the time the Shareholders received the notice.
4. Registration Expenses. Regardless of when the Registration Statement
becomes effective, the Company shall bear all costs and expenses incident to the
Company's performance of, or compliance with, this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with the Blue Sky Laws, printing expenses, messenger, telephone and delivery
expenses, Nasdaq qualification and listing fees, and fees and disbursements of
counsel for the Company, all independent certified public accountants of the
Company and fees and expenses of other Persons retained by the Company relating
to the distribution of the Registrable Securities (all such expenses being
herein called "Registration Expenses"). The participating Shareholders shall pay
all discounts and commissions attributable to the Registrable Securities, all
transfer taxes relating to the sale or disposition of the Registrable Securities
and any fees of any attorney or accountant retained by the Shareholders except
as otherwise provided in the Merger Agreement.
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5. Disclosure. With a view to making available registration on Form S-3
and the benefits of Rule 144 under the Securities Act, the Company agrees, for a
period two years following the date of this Agreement, to:
(a) Make and keep current public information available within
the meaning of Rule 144(c) of the Securities Act.
(b) File with the SEC in a timely manner all reports and other
documents and information required of the Company under the Exchange
Act, and take such other actions as may be necessary to assure the
availability of Form S-3 for use in connection with the registration
rights provided in this Agreement.
(c) Furnish to a Shareholder forthwith upon request a written
statement as to the Company's compliance with the reporting
requirements of Rule 144 and the Exchange Act, a copy of the Company's
most recent annual and quarterly reports, and such other reports,
documents and other information in the possession of or reasonably
obtainable by the Company as the Shareholder may reasonably request in
availing itself of Rule 144.
6. Indemnification.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, the
Shareholders against all losses, claims, damages, liabilities and
expenses (including, without limitation, reasonable attorneys' fees and
expenses) to which the Shareholders may become subject under federal or
state securities laws or otherwise which arise out of, or are caused
by, the Company's violation of any federal or state securities laws,
including, but not limited to, any untrue or alleged untrue statement
of a material fact contained in any Registration Statement, Prospectus
or preliminary prospectus or in any application or other request that
the Company files, including any application or request filed under the
Blue Sky Laws or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are
caused by or contained in any written information furnished to the
Company by any of the Shareholders expressly for use therein or by any
Shareholder's failure to deliver a copy of the Registration Statement
or Prospectus after the Company has furnished the participating
Shareholders with a sufficient number of copies of the same.
(b) Indemnification by Shareholders. In connection with any
Registration Statement in which any Shareholder's Registrable
Securities are registered and sold, the participating Shareholders
shall furnish to the Company such information and affidavits as the
Company reasonably requests for use in connection with any Registration
Statement or Prospectus and agree to indemnify and hold harmless, to
the full extent permitted by law, the Company, its officers, directors
and each Person who controls the
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Company (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities and expenses (including, without
limitation, reasonable attorneys' fees and expenses) resulting from any
untrue or alleged untrue statement of a material fact or any omission
or alleged omission of a material fact required to be stated in the
Registration Statement, Prospectus, preliminary Prospectus or any
application filed under the Blue Sky Laws or necessary to make the
statements therein not misleading, but only to the extent that the
untrue statement or omission is contained in any written information or
affidavit so furnished by the Shareholder to the Company expressly for
inclusion in the Registration Statement, Prospectus or application
filed under the Blue Sky Laws; provided, however, that the obligation
to indemnify under this Section 6(b) shall be several, not joint and
several, among such holders of Registrable Securities and shall be
limited to the net amount of proceeds received by such holder from the
sale of Registrable Securities pursuant to such Registration Statement.
The Company shall be entitled to receive indemnities from underwriters,
selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as
provided above with respect to information so furnished by the Persons
specifically for inclusion in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder shall (i) promptly notify the
indemnifying party of any claim with respect to which it seeks
indemnification and (ii) permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the
indemnified party. Any Person entitled to indemnification hereunder
shall have the right to employ separate counsel and to participate in
the defense of the claim, but the fees and expenses of the counsel
shall be at the expense of the Person unless (A) the indemnifying party
has agreed to pay the fees or expenses, (B) the indemnifying party
shall have failed to assume the defense of the claim and employ counsel
reasonably satisfactory to the Person, or (C) in the reasonable
judgment of the Person, based upon advice of its counsel, a conflict of
interest may exist between the Person and the indemnifying party with
respect to the claims (in which case, if the Person notifies the
indemnifying party in writing that the Person elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of the claim on
behalf of the Person). If the indemnifying party assumes the defense,
the indemnifying party will not be subject to any liability for any
settlement made without its consent. The indemnifying party, however,
may not unreasonably withhold its consent. No indemnifying party will
be required to consent to the entry of any judgment or to enter into
any settlement which does not include as an unconditional term the
claimant's or plaintiff's release of the indemnified party from all
liability in respect to the claim or litigation. An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim
shall not be obligated to pay the fees and expenses of more than one
counsel in any jurisdiction for all parties indemnified by the
indemnifying party with respect to the claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified
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parties with respect to the claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of such
additional counsel or counsels.
(d) Contribution. If for any reason the indemnification
provided for in the preceding clauses (a) and (b) is unavailable to an
indemnified party or insufficient to hold it harmless as contemplated
by the preceding clauses (a) and (b), then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a
result of the loss, claim, damage, liability or expense in the
proportion as is appropriate to reflect (i) the relative fault of the
indemnified party and the indemnifying party, and (ii) any other
relevant equitable considerations. Notwithstanding the foregoing, no
Shareholder shall be required to contribute any amount in excess of the
net amount of proceeds received by such holder from the sale of
Registrable Securities giving rise to the loss, claim, damage,
liability or expense.
(e) Survival. The indemnities provided in this Section 6 shall
survive the Shareholders' transfer of any Registrable Securities.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall not on or
after the date of this Agreement enter into any agreement with respect
to its securities which is inconsistent with the rights granted to the
Shareholders in this Agreement or otherwise conflicts with the
provisions of this Agreement. The rights granted to the Shareholders
under this Agreement do not in any way conflict with and are not
inconsistent with any rights granted under any other agreement
concerning the Company's securities.
(b) Amendments and Waivers. No amendment, modification,
supplement or waiver of any provision of this Agreement is binding on
any party unless the party consents in writing thereto. The provisions
of this Agreement may not be amended or modified without the prior
written consent of the Company and holders of a majority of the then
outstanding shares of Registrable Securities.
(c) Remedies. Any Person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically to
recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that any
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other security) for
specific performance and for other injunctive relief in order to
enforce or prevent violation of the provisions of this Agreement.
(d) Notices. All notices and other communications that this
Agreement
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provides for or permits shall be made in writing by hand
delivery or registered or certified first-class mail:
(i) to the Shareholders, at the most current
address given by the Shareholders to the
Company.
(ii) To the Company at:
Compuware Company
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: President
All notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; or
five (5) business days after being deposited in the mail, postage
prepaid, if mailed.
(e) Governing Law. This Agreement shall be governed by the
laws of the State of Michigan (regardless of the laws that might
otherwise govern under applicable Michigan principles of conflicts of
law) as to all matters, including, but not limited to, matters of
validity, construction, effect, performance and remedies.
(f) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(g) Interpretation. The Section headings contained in this
Agreement are for the purposes of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
(h) Severability. If any provision of this Agreement is
determined to be illegal or invalid, such illegality or invalidity
shall have no effect on the other provisions of this Agreement, and all
other provisions of this Agreement shall remain valid, operative and
enforceable.
(i) Assignment. The rights granted to the Shareholders
pursuant to this Agreement shall be assignable only with the prior
written consent of the Company, which consent with respect to
assignments for estate planning purposes shall not be unreasonably
withheld, conditioned or delayed.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMPUWARE CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Its: Executive Vice President
XXXX X. XXXX 1999 QUALIFIED ANNUITY
TRUST
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Xxxxxxx X. Xxxx, Trustee
/s/ Xxxxxxx X. Xxxx
--------------------------------
XXXXXXX X. XXXX
/s/ Xxxxxx X. Xxxx
--------------------------------
XXXXXX X. XXXX
XXXXX X. XXXXXXXX 1999 QUALIFIED
ANNUITY TRUST
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Xxxx Xxxxxxxx, Trustee
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XXXXXXX X. XXXX REVOCABLE TRUST
DATED JANUARY 23, 1995
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Trustee
XXXX X. XXXX REVOCABLE TRUST
DATED JANUARY 23, 1995
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, Trustee
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SCHEDULE 1 TO
REGISTRATION RIGHTS AGREEMENT
The shares offered hereby may be sold from time to time by the Selling
Shareholders, or by pledgees, donees, transferees or other successors in
interest of the Selling Shareholders. Such sales may be made on the Nasdaq
National Market, or otherwise, at prices and on terms then prevailing or at
prices related to the then-current market prices, or in negotiated transactions
at negotiated prices. The shares may be sold by one or in a combination of the
following: (a) a block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent, but may position and resell a portion of
the block as principal to facilitate the transaction; (b) purchases by a broker
or dealer as principal and resale by such broker or dealer for its account
pursuant to this Prospectus; and (c) ordinary brokerage transaction and
transactions in which the broker solicits purchasers. In effecting sales,
brokers or dealers engaged by the Selling Shareholders may arrange for other
brokers or dealers to participate.
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