EXHIBIT 4.1
THIS STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS. IT MAY NOT BE OFFERED, SOLD
OR TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED. THIS WARRANT IS ALSO
SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN
SECTION 6 HEREOF.
WARRANT TO PURCHASE SHARES
OF COMMON STOCK, $.01 PAR VALUE, OF
COMPUWARE CORPORATION
November 16, 2001
THIS STOCK PURCHASE WARRANT ("Warrant") CERTIFIES THAT, for value
received, subject to the provisions hereinafter set forth, Xxxxxxxx Steel, Inc.
(the "Holder") is entitled to purchase from Compuware Corporation, a Michigan
corporation, and its successors and assigns (the "Company") up to 1,000,000
shares (the "Warrant Shares") of common stock of the Company, $.01 par value
(the "Common Stock"), at the price of $10.51 per share (the "Per Share Warrant
Price"). This Warrant may be exercised at any time after the date hereof and
until the "Expiration Date," which shall be the earlier of the close of business
on (1) the third anniversary of the date hereof and (2) the fifth business day
following the Trigger Date. The "Trigger Date" shall be the first day hereafter
on which the average of the last sale price per share of the Common Stock on the
Nasdaq Stock Market for the five trading days on which the Common Stock was
traded immediately preceding such day exceeds $20.00 (the "Cap Price"). This
Warrant is subject to the provisions and adjustments, and exercise hereof will
be made on the terms and conditions, hereinafter set forth. The Per Share
Warrant Price, when multiplied by the number of shares purchasable hereunder
shall be referred to as the "Aggregate Warrant Price." The number of shares
purchasable hereunder, the Per Share Warrant Price and the Cap Price are subject
to adjustment, as hereinafter provided.
The following is a statement of the rights of the Holder of this
Warrant and the terms and conditions to which this Warrant is subject, to which
terms the Holder hereof, by acceptance of this Warrant, assents.
1. EXERCISE OF WARRANT
(a) Subject to the conditions set forth herein, this Warrant may be
exercised in whole (but not in part) at any time by the Holder hereof by the
surrender of this Warrant at the principal office of the Company on or before
the Expiration Date and upon payment to the Company of the Aggregate Warrant
Price. Such payment shall be made by the Holder in the form of (i) a money order
or a certified or cashier's check, (ii) a wire transfer of immediately available
funds to an account designated by the Company, which designation shall be
communicated by the Company to Holder promptly upon any such request, or (iii) a
cashless exercise in the manner provided in Section 1(b).
(b) The Holder may exercise the Warrant by the surrender of this
Warrant at the principal office of the Company on or before the Expiration Date
together with a written notice of cashless exercise, in which event the Company
shall issue to the Holder the number of shares of Common Stock determined as
follows:
X = (Y x (A-B))/A
where:
X = the number of shares of Common Stock to be issued to the Holder;
Y = the number of shares of Common Stock with respect to which this
Warrant is being exercised;
A = the average of the high and low trading prices per share of the
Common Stock on the Nasdaq Stock Market for the five trading days immediately
preceding (but not including) the date of exercise.
B = the Per Share Warrant Price (as adjusted to the date of such
calculation).
(c) The Company shall keep a warrant registry book of the names of all
the holders of its registered warrants (including the Holder) and their
registered assigns.
(d) The exercise of the Warrant shall be accomplished in the following
manner:
(i) Surrender of this Warrant for exercise may be made by any
officer of Holder, any attorney representing Holder or any other
designated representative of Holder. Surrender shall be made by any of
the means provided, and at the address specified, in Section 9(d).
(ii) The Warrant shall be accompanied by a written statement
that the Holder is surrendering the Warrant for exercise and the method
by which payment of the Aggregate Warrant Price is being made. The
written statement shall be signed by any officer of Holder, any
attorney representing Holder or any other
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designated representative of Holder. If payment is being made by money
order or certified or cashier's check, payment shall accompany the
Warrant and written statement. If payment is made by wire transfer,
such wire transfer shall be made as soon as practicable following the
delivery of the Warrant and notice of exercise. Notwithstanding any
other provision in this Warrant to the contrary, this Warrant shall not
be deemed exercised until payment of the Aggregate Warrant Price has
been received by the Company in one of the forms specified in Section
1(a).
(iii) The Company shall not be required to make inquiry into
the authorization of any person executing such statement or purporting
to surrender this Warrant for exercise on behalf of Holder, and shall
be entitled to treat any such person as the duly authorized
representative of Holder unless the Company has actual knowledge that
such person is not so authorized.
2. ADJUSTMENTS
(a) In the event the Company shall (i) pay a dividend to the holders of
Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares of
Common Stock into a greater number of shares, (iii) combine its outstanding
shares of Common Stock into a smaller number of shares, then (A) the number of
Warrant Shares shall be adjusted so that the Holder shall thereafter be entitled
to receive upon the exercise of this Warrant the number of shares of Common
Stock which it would have owned immediately after such event had the number of
Warrant Shares in effect immediately prior to the occurrence of such event been
owned on the record date for such event and (B) the Per Share Warrant Price and
the Cap Price shall be adjusted to that price determined by multiplying the Per
Share Warrant Price or the Cap Price, as the case may be, in effect immediately
prior to such event by a fraction (x) the numerator of which is the total number
of outstanding shares of Common Stock immediately prior to such event, and (y)
the denominator of which shall be the total number of outstanding shares of
Common Stock immediately after such event. Such adjustment shall become
effective immediately after the opening of business on the day following such
record date or the day upon which such subdivision, combination or
reclassification becomes effective.
(b) In the event the Company shall (i) issue by reclassification of its
Common Stock any shares of the Company of any class or series, (ii) merge or
consolidate with or into another entity (other than a merger in which the
Company is the surviving entity and which does not result in any
reclassification of the outstanding shares of Common Stock), (iii) sell or
otherwise convey to another entity all or substantially all of the assets of the
Company followed by the distribution of the proceeds thereof to the shareholders
of the Company, or (iv) engage in a share exchange involving all or
substantially all of the stock of the Company, then the Holder shall thereafter
be entitled to receive upon the exercise of this Warrant, instead of the Warrant
Shares, the consideration which he would have owned immediately after such event
had the Warrant been exercised immediately prior to the occurrence of such
event.
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(c) No adjustment shall be required unless such adjustment would
require an increase or decrease of at least one-tenth of a share in the number
of Warrant Shares or at least one-tenth of a cent in the Per Share Warrant
Price; provided, however, that any adjustment which by reason hereof is not
required to be made shall be carried forward and taken into account in any
subsequent adjustment.
(d) No fractional shares of Common Stock shall be issued upon exercise
of this Warrant. The number of shares issued shall instead be rounded down to
the nearest whole share and any fractional share disregarded.
(e) The Company shall not, by amendment of its Articles of
Incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the Company, but will
at all times in good faith assist in the carrying out of all of the provisions
of this Section 2.
(f) Whenever the Per Share Warrant Price, the Cap Price or the number
of Warrant Shares shall be adjusted pursuant to the provisions hereof, the
Company shall within 30 days of such adjustment deliver a certificate signed by
its chief financial officer to the Holder hereof setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated, and the Per Share Warrant Price,
Cap Price and number of Warrant Shares after giving effect to such adjustment.
The form of this Warrant need not be changed because of any of the foregoing
adjustments and this Warrant shall continue to be exercisable after any such
adjustment on the terms and conditions set forth herein, as so adjusted.
3. FULLY PAID STOCK
The Company agrees that the Warrant Shares delivered upon exercise of
this Warrant as herein provided shall, at the time of such delivery, be fully
paid and non-assessable, and free from all liens and charges with respect to the
purchase thereof. During the period within which this Warrant may be exercised,
the Company will at all times have authorized, and hold in reserve for issuance
upon exercise of this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise of this Warrant.
4. CLOSING OF TRANSFER BOOKS
The right to exercise this Warrant shall not be suspended during any
period while the stock transfer books of the Company for its Common Stock may be
closed. The Company shall not be required, however, to deliver certificates of
its Common Stock upon the exercise of this Warrant while such books are duly
closed for any purpose, but the Company may postpone the delivery of the
certificates for such Common Stock until the opening of such books, and they
shall, in such case, be delivered forthwith upon the opening thereof, or as soon
as practicable thereafter.
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5. LOST OR STOLEN WARRANTS
In case this Warrant shall be mutilated, lost, stolen or destroyed, the
Company shall issue a new Warrant of like date, tenor, and denomination and
deliver the same in exchange and substitution for and upon surrender and
cancellation of any mutilated Warrant, or in lieu of the lost, stolen or
destroyed Warrant, upon an indemnity agreement or bond reasonably satisfactory
to the Company.
6. ASSIGNMENT
Except as provided in the next sentence, this Warrant is not assignable
or transferable and any such attempted assignment or transfer shall be null and
void. Notwithstanding the foregoing, this Warrant may be transferred to the
person or entity owning at least a majority of each class of Holder's voting
securities or to an entity a majority of the voting securities of which are
owned by Holder. Except where written notice of a transfer made pursuant to the
second sentence of this Section 6 has been given in accordance with Section
9(d), the Company may deem and treat the Holder as the absolute owner of this
Warrant (notwithstanding any notations of ownership or writing hereon made by
anyone other than the Company) for all purposes and shall not be affected by any
notice to the contrary.
7. SECURITIES MATTERS
(a) Neither this Warrant nor the Warrant Shares have been registered
under the Securities Act of 1933 (the "Act"), as amended, or any applicable
"Blue Sky" laws. By acceptance of this Warrant, the Holder represents and
warrants to the Company that Holder (i) is receiving this Warrant and, upon
exercise, is acquiring the Warrant Shares for Holder's own account and not on
behalf of others, and is not taking this Warrant or any of the Warrant Shares
with a view to the "distribution" thereof (as that term is defined in the Act
and the rules and regulations of the Securities and Exchange Commission
thereunder) and (ii) will not offer, distribute, sell, transfer or otherwise
dispose of this Warrant or the Warrant Shares except pursuant to (A) an
effective registration statement under the Act and any applicable Blue Sky laws
with respect thereto, or (B) an opinion addressed to the Company, which opinion
and the counsel rendering it reasonably are deemed satisfactory to the Company,
that such offering, distribution, sale, transfer or disposition is exempt from
registration under the Act and any applicable Blue Sky laws. Each and every
certificate representing Warrant Shares to be delivered upon exercise of this
Warrant shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SUCH
SECURITIES MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY
APPLICABLE STATE
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SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
(b) Anything to the contrary herein notwithstanding, the Company's
obligation to sell and deliver Common Stock pursuant to the exercise of this
Warrant is subject to its receipt of satisfactory assurance that the issuance of
such shares shall not violate any of the provisions of the Securities Act of
1933 or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder. No shares shall be issued until counsel for the Company
has determined that the Company has complied with all requirements under
appropriate securities laws.
8. NO RIGHTS AS SHAREHOLDER
Nothing contained in this Warrant shall be construed as conferring upon
the Holder any rights as a shareholder of the Company. Holder shall have rights
as a shareholder only to the extent the Holder owns shares following exercise of
this Warrant.
9. MISCELLANEOUS
(a) All covenants and agreements of the Company in this Warrant shall
be binding upon the Company's successors and assigns.
(b) This Warrant shall be construed and enforced in accordance with the
laws of the State of Michigan without regard to choice of law principles that
would compel the application of the law of any other jurisdiction.
(c) This Warrant may be amended, except as provided in Section 2, only
with the written consent of the Company and the Holder.
(d) Any notices or other communications required or permitted hereunder
shall be sufficiently given if in writing and delivered in person or sent by
United States mail, by registered mail, postage prepaid, or by courier or
express delivery service (including, without limitation, Federal Express and
UPS), and if to the Holder, addressed to the Holder at Xxxxxxxx Steel, 0000
Xxxxx Xx., Xxxxxx, XX 00000-0000, Attention: Xxxx Xxxxxxxx, with a copy to Xxxx
X. Xxxxx, Esq., Xxxxxxx, Xxxxx & Xxxxx, National City Bank Building, 000 Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000-0000, and if to the Company, addressed to
it at 00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxx, XX 00000-0000, Attention:
General Counsel, or to such other address or attention as shall be furnished in
writing by the Company or the Holder. Any such notice or other communication
shall be deemed to have been given as of the date received.
(e) The Company will pay when due and payable any and all federal and
state taxes which may be payable by the Company in respect of the issue of this
Warrant, or any Common Stock or certificates therefor upon the exercise of this
Warrant, pursuant to the provisions thereof. The Company shall not, however, be
required to pay any tax
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which may be payable in respect of any attempted transfer, in whole or in part,
of this Warrant (including the issuance of new Warrants in connection therewith)
or the delivery of stock certificates in a name other than that of the Holder
presented for exercise, and any such tax shall be paid by the Holder at the time
of presentation.
IN WITNESS WHEREOF, the undersigned has caused this Warrant to be
signed by a duly authorized officer and this Warrant to be dated the date set
forth above.
COMPUWARE CORPORATION ACCEPTED AND AGREED:
By: /s/ Xxxxxx Xxxxxxxx Jr. XXXXXXXX STEEL, INC.
---------------------------
Its: Vice President, Secretary
-------------------------- By: /s/ Xxxx Xxxxx
and General Counsel ---------------------------
Its: President
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