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EXHIBIT 3(i).1
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MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
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(For Bureau Use Only)
Date Received
Received October 23, 1992
Filed Michigan Department of
October 23, 1992 Commerce Corporation and
Securities Bureau
Administrator
Michigan Department of Commerce
Corporation and Securities Bureau
RESTATED ARTICLES OF INCORPORATION
For Use by Domestic Profit Corporations
Pursuant to the provisions of Act 284, Public Acts of 1972, the
undersigned corporation executes the following Articles:
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1. The present name of the corporation is: Compuware Corporation
2. The corporation identification number (CID) assigned by the Bureau
is: 008-375
3. All former names of the corporation are: N/A
4. The date of filing the original Articles of Incorporation was
March 23, 1973.
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The following Restated Articles of Incorporation supersede the Articles
of Incorporation as amended and shall be the Articles of Incorporation of the
corporation:
ARTICLE I
The name of the corporation is: Compuware Corporation
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ARTICLE II
The purpose or purposes for which the corporation is formed are to engage in any
activity within the purposes for which corporations may be formed under the
Michigan Business Corporation Act.
ARTICLE III
The total authorized capital stock is:
1. Common Shares 80,000,000 shares, Common Stock, $0.01 Par Value
Preferred Shares 5,000,000 shares, Class A Preferred Stock, No Par
Value 729,395 shares, Convertible Participating
Preferred Stock, No Par Value 300,000 Class B
Preferred Stock, $0.01 Par Value.
2. A statement of all or any of the relative rights, preferences and
limitations of the shares of each class is as follows:
a. Class A Preferred Stock. The Board of Directors may cause the
corporation to issue Class A Preferred Stock in one or more
series, each series to bear a distinctive designation and to
have such relative rights and preferences as shall be
prescribed by resolutions of the Board of Directors. Such
resolutions, when filed, shall constitute amendments to these
Restated Articles of Incorporation. Except as otherwise
required by law, holders of the Class A Preferred Stock shall
not be entitled to vote on any matter.
b. Convertible Participating Preferred Stock. The Convertible
Participating Preferred Stock shall have the rights,
preferences and limitations set forth in Article III, 2, (b)
attached hereto as Exhibit A.
c. Class B Preferred Stock. The Class B Preferred Stock shall
have the rights, preferences and limitations set forth in
Article III, 2, (c) attached hereto as Exhibit B.
d. Preemptive Rights. Shareholders shall have no preemptive
rights to subscribe for any additional shares of capital stock
or other obligations convertible into shares of capital stock
to be issued by the corporation.
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ARTICLE IV
1. The address of the current registered office is:
31440 Northwestern Highway
Farmington Hills, Michigan 48334-2564
2. The mailing address of the current registered office if different than
above:
N/A
3. The name of the current resident agent at the registered office is:
Thomas Thewes
ARTICLE V
When a compromise or arrangement or a plan of reorganization of this
corporation is proposed between this corporation and its creditors or any class
of them or between this corporation and its shareholders or any class of them, a
court of equity jurisdiction within the state, on application of this
corporation or of a creditor or shareholder thereof, or on application of a
receiver appointed for the corporation, may order a meeting of the creditors or
class of creditors or of the shareholders or class of shareholders to be
affected by the proposed compromise or arrangement or reorganization, to be
summoned in such manner as the court directs. If a majority in number
representing 3/4 in value of the creditors or class of creditors, or of the
shareholders or class of shareholders to be affected by the proposed compromise
or arrangement or a reorganization, agree to a compromise or arrangement or a
reorganization of this corporation as a consequence of the compromise or
arrangement, the compromise or arrangement and the reorganization, if sanctioned
by the court to which the application has been made, shall be binding on all the
creditors or class of creditors, or on all of the shareholders or class of
shareholders and also on this corporation.
ARTICLE VI
Any action required or permitted by the Act to be taken at an annual or
special meeting of shareholders may be taken without a meeting, without prior
notice and without a vote, if consents in writing, setting forth the action so
taken, are signed by the holders of outstanding shares having not less than the
minimum number of votes that would be necessary to authorize or take the action
at a meeting at which all shares entitled to vote on the action were present and
voted.
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ARTICLE VII
A director of the corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for breach of the
director's fiduciary duty. However, this Article shall not eliminate or limit
the liability of a director for any of the following:
(1) A breach of the director's duty of loyalty to the corporation
or its shareholders.
(2) Acts or omissions not in good faith or that involve
intentional misconduct or knowing violation of law.
(3) A violation of Section 551(1) of the Michigan Business
Corporation Act.
(4) A transaction from which the director derived an improper
personal benefit.
(5) An act or omission occurring before the effective date of this
Article.
Any repeal, amendment or other modification of this Article shall not increase
the liability or alleged liability of any director of the corporation then
existing with respect to any state of the facts then or theretofore existing or
any action, suit or proceeding theretofore or thereafter brought or threatened
based in whole or in part upon any such state of facts. If the Act is
subsequently amended to authorize corporate action further eliminating or
limiting personal liability of directors, then the liability of directors shall
be eliminated or limited to the fullest extent permitted by the Act as so
amended.
ARTICLE VIII
These Restated Articles of Incorporation shall become effective, if not
previously abandoned by action of the shareholders or Board of Directors of the
corporation, on the date that a registration statement on Form S-1 for the
issuance to the public of Common Stock of the corporation is declared effective
by the Securities and Exchange Commission (the "Effective Date").
5. COMPLETE SECTION (a) IF THE RESTATED ARTICLES WERE ADOPTED BY THE
UNANIMOUS CONSENT OF THE INCORPORATORS BEFORE THE FIRST MEETING OF THE
BOARD OF DIRECTORS; OTHERWISE, COMPLETE SECTION (b)
a. | | These Restated Articles of Incorporation were
duly adopted on the ______ day of _________________,
19___, in accordance with the provisions of Section
642 of the Act by the unanimous consent of the
incorporators before the first meeting of the Board
of Directors.
Signed this ______ day __________________, 19__.
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________________________ ________________________
________________________ ________________________
[Signatures of all incorporators; type or print name
under each signature.]
b. |X| These Restated Articles of Incorporation were duly
adopted on the 23rd day of October, 1992, in
accordance with the provisions of Section 642 of the
Act and: (check one of the following)
| | were duly adopted by the Board of Directors
without a vote of the shareholders. These
Restated Articles of Incorporation only
restate and integrate and do not further
amend the provisions of the Articles of
Incorporation as heretofore amended and
there is no material discrepancy between
those provisions and the provisions of these
Restated Articles.
| | were duly adopted by the shareholders. The
necessary number of shares as required by
statute were voted in favor of these
Restated Articles.
|X| were duly adopted by the written consent of
the shareholders having not less than the
minimum number of votes required by statute
in accordance with Section 407 (1) of the
Act. Written notice to shareholders who have
not consented in writing has been given.
(Note: Written consent by less than all of
the shareholders is permitted only if such
provision appears in the Articles of
Incorporation.)
| | were duly adopted by the written consent of
all the shareholders entitled to vote in
accordance with Section 407(2) of the Act.
Signed this 23rd day of October, 1992
W. James Prowse
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(Only signature of President, Vice President,
Chairperson or Vice Chairperson)
W. James Prowse, Senior Vice President
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(Print or type name and title)
Document will be returned to name and Name of person or organization
mailing address indicated below. remitting fees:
(Include name, street and number (or
P.O. Box), city, state and zip code.) Honigman Miller Schwartz and Cohn
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Preparer's name and business
Patrick B. Carey telephone number:
Honigman Miller Schwartz and Cohn
2290 First National Building Patrick B. Carey
Detroit, Michigan 48226 ----------------
________________________________ (313) 256-7306
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EXHIBIT A
TO RESTATED ARTICLES OF INCORPORATION OF
COMPUWARE CORPORATION
ARTICLE III, 2, (b)
STATEMENT OF RIGHTS, PREFERENCES AND LIMITATIONS
OF CONVERTIBLE PARTICIPATING PREFERRED STOCK
1. Dividends. No dividends shall be declared or paid or
distribution made for any shares of the Convertible Participating Preferred
Stock; provided, however, that if the Board of Directors shall declare a
dividend or other distribution payable upon any class of then outstanding shares
of capital stock of the Corporation (other than any class of then outstanding
shares of capital stock that is (i) issued in connection with the repurchase,
redemption or exchange by the Corporation of shares of its Common Stock and (ii)
entitled to receive dividends not in excess of six percent per annum), there
shall be declared a dividend of equal amount per share payable on the shares of
Convertible Participating Preferred Stock outstanding on such date.
2. Voting Rights of Convertible Participating Preferred Stock.
(a) Each share of Convertible Participating Preferred
Stock shall have the same voting rights as each share of Common Stock (subject
to the anti-dilution provisions of Section 4 of this Article III, 2, (b)) and
shall be entitled to one vote.
(b) Except as provided in Section 2(c) of this Article
III, 2, (b), all shares of the capital stock of the Corporation entitled to vote
shall be voted together as a single class on all matters.
(c) Notwithstanding Sections 2(a) and (b) of this Article
III, 2, (b), the affirmative vote of the holders of a majority of the
outstanding shares of Convertible Participating Preferred Stock shall be
required to authorize any action which alters or changes the rights, preferences
or privileges of the Convertible Participating Preferred Stock, alters the par
value or liquidation value of the Convertible Participating Preferred Stock,
increases the authorized number of shares of Convertible Participating Preferred
Stock or creates any new class of shares having preference over or being on a
parity with the Convertible Participating Preferred Stock in any respect;
provided, however, that such affirmative vote shall not be required to create a
class of preferred stock that is (i) issued in connection with the repurchase,
redemption or exchange by the Corporation of shares of its Common Stock and (ii)
entitled to receive dividends not in excess of six percent per annum.
3. Liquidation and Extraordinary Transactions. In the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
affairs of the Corporation or any reduction in its capital resulting in any
distribution of assets to its stockholders, the holders of
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shares of Convertible Participating Preferred Stock then outstanding shall have
the right to exchange their shares and receive the amounts set forth in
subparagraphs (a) and (b) below out of the assets of the Corporation available
for distribution to its stockholders. In the event of any sale of all or
substantially all of the assets of the Corporation or any merger or
consolidation of the Corporation with or into any other Corporation, the holders
of shares of Convertible Participating Preferred Stock then outstanding shall,
at their sole option, be entitled (i) to continue to hold such shares or (ii) to
exchange them and receive therefor the amounts set forth in subparagraphs (a)
and (b) below in cash, securities or other property in the same proportions as
received by the holders of shares of Common Stock, which distribution to holders
of Convertible Participating Preferred Stock shall be made concurrently with the
distribution to holders of shares of Common Stock. In the event of the first
public offering by the Corporation of Common Stock registered under the
Securities Act of 1933, as amended, the holders of shares of Convertible
Participating Preferred Stock then outstanding shall, at their sole option, be
entitled (i) to continue to hold such shares or (ii) to exchange them and
receive therefor the amounts set forth in subparagraphs (a) and (b) below in
newly issued shares of Common Stock, which issuance to the holders of
Convertible Participating Preferred Stock shall be made on the closing date of
such public offering.
(a) Upon the happening of one of the events specified
above, each share of Convertible Participating Preferred Stock then outstanding
shall entitle the holder thereof to receive an amount equal to $41.13 per share
of Convertible Participating Preferred Stock before any payment shall be made,
or any assets distributed, to the holders of shares of Common Stock or any other
class of capital stock of the Corporation ranking junior to the Convertible
Participating Preferred Stock. If the assets of the Corporation are not
sufficient to pay in full this payment payable to the holders of then
outstanding shares of Convertible Participating Preferred Stock, the holders of
all such shares shall share ratably in the distribution of such amounts;
(b) In addition, each share of Convertible Participating
Preferred Stock then outstanding shall entitle the holder thereof to receive:
(i) in the event the Equity Valuation is greater
than $200,000,000 but less than $230,000,000, (x) in the event of the first
public offering by the Corporation of Common Stock registered under the
Securities Act of 1933, as amended, one-half share of Common Stock (subject to
the anti-dilution provisions of Section 4(e) of this Article III, 2, (b)); or
(y) in the event of a voluntary or involuntary liquidation, dissolution or
winding-up of the affairs of the Corporation or any reduction in its capital
resulting in any distribution of assets to its stockholders or any sale of all
or substantially all of the assets of the Corporation or any merger or
consolidation of the Corporation with or into any other corporation, an amount
equal to and in the same proportions as received for one-half of a share of
Common Stock (subject to the anti-dilution provisions of Section 4(e) of this
Article III, 2, (b)); or
(ii) in the event the Equity Valuation is equal
to or greater than $230,000,000 (x) in the event of the first public offering by
the Corporation of Common Stock registered under the Securities Act of 1933, as
amended, one share of Common Stock (subject to
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the anti-dilution provisions of Section 4(e) of this Article III, 2, (b)); or
(y) in the event of a voluntary or involuntary liquidation, dissolution or
winding-up of the affairs of the Corporation or any reduction in its capital
resulting in any distribution of assets to its stockholders or any sale of all
or substantially all of the assets of the Corporation or any merger or
consolidation of the Corporation with or into any other corporation, an amount
equal to and in the same proportions as received for a share of Common Stock
(subject to the anti-dilution provision of Section 4(e) of this Article III, 2,
(b)).
"Equity Valuation" shall mean the sum of the aggregate fair market
value of any securities issued or notes or other property distributed, and any
cash consideration paid, to the Corporation and any of its subsidiaries in
connection with the liquidation, dissolution, winding-up, sale, merger or
consolidation of the Corporation and any of its subsidiaries (or any related
series of such transactions) available for distribution to all the equity
holders of the Corporation less the amount of any and all cumulative dividends
due at the time of liquidation to the holders of shares of any class of then
outstanding capital stock that are (i) issued in connection with the repurchase,
redemption or exchange by the Corporation of shares of its Common Stock entitled
to receive dividends not in excess of six percent per annum; provided that, for
the purposes of any public offering, "Equity Valuation" shall mean the aggregate
value of the entire equity of the Corporation (immediately prior to such public
offering) assuming each share of Common Stock (including all securities or
obligations which are by their terms convertible into Common Stock of the
Corporation and any warrant, option or other subscription or purchase right with
respect to the Corporation's Common Stock, each of which shall be treated as if
they had been converted to Common Stock immediately prior to any public
offering) is valued at the public offering price.
4. Conversion
(a) Each share of Convertible Participating Preferred
Stock shall be convertible at any time at the option of the holder thereof into
one share of Common Stock (the "Conversion Rate"). The Conversion Rate shall be
subject to adjustment from time to time in certain instances as hereinafter
provided, except that no adjustment shall be made unless, by reason of the
happening of any one or more of the events hereinafter specified, the Conversion
Rate then in effect would be changed by 1% or more, but any adjustment of less
than 1% that would otherwise be required then to be made shall be carried
forward and shall be made at the time of and together with any subsequent
adjustment which, together with any adjustment or adjustments so carried
forward, amounts to 1% or more.
(b) Before any holder of shares of Convertible
Participating Preferred Stock shall be entitled to convert the same into Common
Stock, such holder shall surrender the certificate or certificates of such
shares of Convertible Participating Preferred Stock at the head office of the
Corporation, which certificate or certificates, if the Corporation shall so
request, shall be duly endorsed to the Corporation or in blank, or accompanied
by proper instruments of transfer to the Corporation or in blank, and shall give
written notice to the Corporation that he or she elects so to convert said
shares of Convertible Participating Preferred Stock.
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(c) The Corporation will, as soon as practicable after
such surrender of certificates of shares of Convertible Participating Preferred
Stock, issue and deliver to the person for whose account such Convertible
Participating Preferred Stock was so surrendered, or to his or her nominee or
nominees, certificates for the number of full shares of Common Stock to which he
or she shall be entitled as aforesaid, together with a cash adjustment computed
in accordance with Section 4(f) of this Article III, 2, (b) for any fraction of
his or her share as hereinafter stated, if not evenly convertible. Subject to
the following provisions of this paragraph, such conversion shall be deemed to
have been made as of the date such surrender of Convertible Participating
Preferred Stock to be converted was duly completed in accordance with this
Section 4(c) of this Article III, 2, (b) and the holder of shares of Convertible
Participating Preferred Stock shall be deemed to be for all purposes the record
holder of the shares of Common Stock as of such date.
(d) The Corporation shall not be required to effect any
conversion of shares of Convertible Participating Preferred Stock while the
stock transfer books of the Corporation are closed for any purpose; but any
shares of Convertible Participating Preferred Stock surrendered for conversion
during any period while such books are so closed shall be converted, effective
retroactively to the date on which such surrender of Convertible Participating
Preferred Stock was completed in accordance with Section 4(c) of this Article
III, 2, (b), and at the Conversion Rate in effect at such date.
(e) The Conversion Rate shall be subject to adjustment
from time to time as follows:
(i) If the Corporation shall at any time (x)
subdivide its outstanding shares of Common Stock into a larger number of shares
of Common Stock; or (y) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock, the Conversion Rate in effect
immediately prior thereto shall be adjusted ratably. An adjustment made pursuant
to this Section 4(e)(i) of this Article III, 2, (b) shall become effective
retroactively to the record date.
(ii) In case of any capital reorganization or any
reclassification of the capital stock of the Corporation the Conversion Rate
shall thereafter be adjusted to reflect the reorganization or recapitalization
to the end of preserving as nearly as reasonably may be the liquidation rights
of the holders of Convertible Participating Preferred Stock.
(iii) Whenever the Conversion Rate is adjusted as
herein provided, the Secretary of the Corporation shall forthwith adjust the
corporate records and cause a notice stating the adjustment and the Conversion
Rate as adjusted to be mailed to the holders of record of the Convertible
Participating Preferred Stock as of the effective date of such adjustment.
(f) The Corporation shall not issue fractional shares of
Common Stock, but in lieu thereof, the Corporation shall pay in cash the fair
market value of fractions of a share of Common Stock as of the time when those
entitled to receive such fractions are determined.
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(g) Shares of Convertible Participating Preferred Stock
which are converted into Common Stock shall be cancelled and shall not be
available for reissuance.
5. Rank. The shares of Convertible Participating Preferred Stock
shall rank senior to the Common Stock as to distribution of assets upon
liquidation, dissolution, winding up, merger or consolidation to the extent
provided in Section 3 of this Article III, 2, (b).
6. Redemption. The Convertible Participating Preferred Stock is
not redeemable.
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EXHIBIT B
TO RESTATED ARTICLES OF INCORPORATION OF
COMPUWARE CORPORATION
ARTICLE III, 2, (c)
RIGHTS, PREFERENCES LIMITATIONS
OF CLASS B PREFERRED STOCK
1. Dividends.
(a) Dividends on Class B Preferred Stock shall be
declared only by the Board of Directors of the Corporation. The determination of
the amount of net profits or surplus for all purposes of this Article III, 2,
(c) shall be made in accordance with Michigan law as to surplus, and generally
accepted accounting principles, consistently applied, as to net profits.
(b) Each holder of Class B Preferred Stock shall be
entitled to receive, before any dividend may be paid on the Common Stock,
cumulative cash dividends as a quarterly rate of one and one-half (1-1/2%)
percent of the Redemption Value for each share held by such holder. The
Redemption Value shall be fixed by the Corporation upon the issuance of the
Class B Preferred Stock, which Redemption Value shall be specified upon the
certificates for such Stock. Such dividend shall be payable on the tenth day of
May, August, November and February of each year.
2. No Preemptive Rights. No holder of the Class B Preferred Stock
of the Corporation shall be entitled, as of right arising solely out of being a
holder of Class B Preferred Stock, to purchase or subscribe for any part of the
unissued stock of the Corporation or of any stock of the Corporation to be
issued by reason of any increase of the authorized capital stock of the
Corporation, or to purchase or subscribe for any bonds, certificates of
indebtedness, debentures or other securities convertible into or carrying
options or warrants to purchase stock or other securities of the Corporation or
to purchase or subscribe for any stock of the Corporation purchased by the
Corporation or by its nominee or nominees, or to have any other preemptive
rights now or hereafter defined by the laws of the State of Michigan.
3. Preference on Liquidation, Etc.
(a) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, or any reduction in
its capital resulting in any distribution of assets to its stockholders, the
holders of the Class B Preferred Stock shall be entitled to receive in cash out
of the assets of the Corporation, whether from capital or from earnings,
available for distribution to its stockholders, before any amount shall be paid
to the holders of the Common Stock or of the stock of any other class ranking
junior to the Class B Preferred Stock, the sum of the Redemption Value per share
plus any cumulative dividends in arrears with respect to such shares.
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(b) The purchase or redemption by the Corporation of stock of
any class, in any manner permitted by law, shall not for the purpose of this
paragraph be regarded as a liquidation, dissolution or winding up of the
Corporation or as a reduction of its capital. Neither the consolidation nor
merger of the Corporation with or into any other corporation or corporations,
nor the sale or transfer by the Corporation of all or any part of its assets,
shall be deemed to be a liquidation, dissolution or winding up of the
Corporation for the purposes of this paragraph. A dividend or distribution to
stockholders from net profits or surplus earned after the date of any reduction
of capital shall not be deemed to be a distribution resulting from such
reduction in capital. No holder of Class B Preferred Stock shall be entitled to
receive any amounts with respect thereto upon any liquidation, dissolution or
winding up of the Corporation other than the amounts provided for in this
paragraph.
4. Call Option. The Class B Preferred Stock shall be subject to
the right of the Corporation to call the same for redemption at any time. The
call may be exercised by the Corporation's Board of Directors as to any part or
all of the Class B Preferred Stock outstanding at any time, at a call price
equal to the Redemption Value for each share called plus any cumulative
dividends in arrears with respect to such share; provided only that if the call
is for less than all of the Class B Preferred Stock outstanding it shall be pro
rata among all holders of the class. Notwithstanding the proviso in the
preceding sentence, the call need not be pro rata in respect of any holder of
the class who, in writing, shall release such holder's right to share pro rata
in the call.
Notice of the election of the Corporation to redeem Class B Preferred
Stock shall be given by the Corporation by mailing a copy of such notice,
postage prepaid, not less than 30 or more than 90 days prior to the date
designated therein as the date for such redemption, to the holders of record of
the Class B Preferred Stock to be redeemed, addressed to such holders at each
such holder's address appearing on the books of the Corporation.
The Board of Directors shall have full power and authority, subject to
the limitations and provisions herein contained or contained in any agreement to
which the Corporation and a holder of Class B Preferred Stock are parties, to
prescribe the manner in which the Class B Preferred Stock shall be redeemable.
On and after the date specified in such notice, each holder of the Class B
Preferred Stock called for redemption as aforesaid, upon presentation and
surrender at the place designated in such notice of the certificate or
certificates for such shares of Class B Preferred Stock held by him and called
by the Corporation, properly endorsed in blank for transfer or accompanied by
proper instruments of assignment in blank (if required by the Corporation) and
bearing all required stock transfer tax stamps, if any, thereto affixed and
cancelled, shall be entitled to receive therefor the call price thereof.
From and after the date of redemption specified in such notice, all
rights of the holders of the Class B Preferred Stock so called for redemption as
stockholders of the Corporation shall terminate, excepting only the right to
receive the call price of such shares on and after the redemption date.
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In the event that the Corporation shall not have called a share of
Class B Preferred Stock on or before the seventh (7th) annual anniversary of the
original issuance of such share, the holder thereof shall have the right,
exercisable at any time thereafter either to (i) require the Corporation to
redeem such share upon demand of the holder for the consideration and upon terms
and conditions hereinabove set forth for the call of such share, or (ii) to
exercise the holder's conversion rights under Section 5 of this Article III, 2,
(c).
All Class B Preferred Stock at any time so redeemed or purchased shall
be cancelled and shall not be reissued.
5. Conversion. Each share of Class B Preferred Stock shall be
convertible on and after the seventh (7th) annual anniversary of its original
issuance into shares of Common Stock of the Corporation, at the option of the
holder thereof, on the following terms and conditions:
(a) Each share of Class B preferred Stock shall be
convertible into fully paid and nonassessable Common Stock of the Corporation as
constituted at the time of such conversion at the Conversion Rate. The
Conversion Rate shall be fixed by the Corporation upon the issuance of the Class
B Preferred Stock, which Conversion Rate will be specified upon the Certificates
for such Stock. Every reference in this Section 5 of this Article III, 2, (c) to
the Common Stock of the Corporation (unless a different intention is expressed)
shall be to the Common Stock of the Corporation of $.01 par value as such stock
exists immediately after the issuance of Class B Preferred Stock provided for
hereunder, or to stock into which said Common Stock may be changed from time to
time thereafter.
(b) If at any time, or from time to time, the Corporation
shall (i) declare and pay, on or in respect of, the Common Stock any dividend
payable in Common Stock or (ii) subdivide, whether by way of stock split, stock
dividend or otherwise, the outstanding Common Stock into a greater number of
shares, or (iii) contract the number of outstanding shares of Class B Preferred
Stock by combining such shares into a smaller number of shares, the conversion
rates in effect at the time of the taking of a record for such dividend or the
taking of such other action shall be proportionately increased as of such time,
and conversely (iv) if at any time, or from time to time, the Corporation shall
contract the number of outstanding Common Stock by combining such shares into a
smaller number of shares, or (v) subdivide the outstanding number of shares of
Class B Preferred Stock into a greater number of shares of Class B Preferred
Stock, the conversion rates in effect at the time of the taking of such action
shall be proportionately decreased as of such time.
(c) If the Corporation shall consolidate with or merge
into any corporation or reclassify its outstanding Common Stock (other than by
way of subdivision or contraction of such shares), each share of Class B
Preferred Stock shall thereafter be convertible as provided in Section 5(a)
above into the number of shares of stock or other securities of property of the
Corporation, or of the entity resulting from such consolidation or merger, to
which a holder of the number of shares of Common Stock deliverable upon
conversion of such shares of Class B Preferred Stock would have been entitled
upon such consolidation or merger or reclassification,
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had the holder of such shares of Class B Preferred Stock exercised his right of
conversion and had such shares been issued and outstanding and had such holder
been the holder of record of such Common Stock at the time of such
consolidation, merger or reclassification; and the Corporation shall make lawful
provision therefor as a part of such consolidation, merger or reclassification.
(d) On presentation and surrender to the Corporation, at
any office or agency maintained for the transfer of the Class B Preferred Stock
of the certificates of Class B Preferred Stock, so to be converted, duly
endorsed for transfer, the holder of such Class B Preferred Stock, shall be
entitled, subject to the limitations herein contained, to receive in exchange
therefor a certificate or certificates for fully paid and nonassessable Common
Stock (including any fractional shares), on the basis aforesaid. The Class B
Preferred Stock shall be deemed to have been converted and the person converting
the same to have become the holder of record of Common Stock, for the purpose of
receiving dividends and for all other purposes whatsoever as of the date when
the certificate or certificates for such Class B Preferred Stock are surrendered
to the Corporation as aforesaid.
(e) The Corporation shall, so long as any shares of the
Class B Preferred Stock are outstanding, reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of effecting the
conversion of the Class B Preferred Stock, such number of shares of Common Stock
as shall from time to time be sufficient to effect the conversion of all of the
Class B Preferred Stock then outstanding. The Corporation shall from time to
time increase its authorized Common Stock and take such other action as may be
necessary to permit the issuance from time to time of Common Stock, as fully
paid and nonassessable shares, upon the conversion of the Class B Preferred
Stock, as herein provided.
(f) The Corporation shall pay any and all taxes which may
be imposed upon it with respect to the issuance and delivery of Common Stock
upon the conversion of Class B Preferred Stock as herein provided. The
Corporation shall not be required in any event to pay any transfer or other
taxes by reason of the issuance of such Common Stock in names other than those
in which the Class B Preferred Stock surrendered for conversion may stand, and
no such conversion or issuance of Common Stock shall be made unless and until
the person requesting such issuance has paid to the Corporation the amount of
any such tax, or has established to the satisfaction of the Corporation or its
transfer agent, if any, that such tax has been paid. Upon any conversion of
Class B Preferred Stock, as herein provided, no adjustment or allowance shall be
made for dividends on the Class B Preferred Stock so converted, and all rights
to dividends, if any, shall cease and be deemed satisfied, but nothing in this
sentence shall be deemed to relieve the Corporation from its obligation to pay
any cumulative dividends in arrears or to pay any dividends which shall have
been declared and shall be payable to holders of Class B Preferred Stock of
record as of a date prior to such conversion even though the payment date for
such dividend is subsequent to the date of conversion.
(g) Class B Preferred Stock surrendered upon conversion
thereof shall not be reissued and no Class B Preferred Stock shall be issued in
lieu thereof or in exchange therefor.
4
16
6. Voting Rights of Class B Preferred Stock. Except as herein or
by law expressly provided, the Class B Preferred Stock shall have no right or
power to vote on any question or in any proceeding or to be represented at or to
receive notice of any meeting of the Corporation's stockholders.
7. Unanimous Vote to Change Rights, Preferences and Powers. So
long as any shares of Class B Preferred Stock are outstanding, without the
affirmative vote at a meeting (the notice of which shall state the general
character of the matters to be submitted thereat), or the written consent with
or without a meeting of the holders of all of the then outstanding shares of
Class B Preferred Stock, the Corporation shall not:
(a) Increase the authorized amount of the Class B
Preferred Stock; or authorize or create, or increase the authorized amount of,
any additional class of stock ranking prior to or on a parity with the Class B
Preferred Stock as to dividends, conversion rights or assets; or authorize or
create, or increase the authorized amount of, any class of stock or obligations
convertible into or evidencing the right to purchase any class of stock ranking
prior to or on a parity with the Class B Preferred Stock as to dividends or
assets; or
(b) amend, alter or repeal any of the provisions of the
Articles of Incorporation as to any of the rights, preferences or limitations of
the outstanding shares of Class B Preferred Stock as fixed herein so as
adversely to affect the rights, preferences or limitations of the Class B
Preferred Stock or its holders; or
(c) merge or consolidate with or into any other
corporation or corporations, unless the corporation surviving or resulting from
such merger or consolidation will have after such merger or consolidation no
class of stock either authorized or outstanding ranking prior to or on a parity
with the Class B Preferred Stock as to dividends or assets except the same
number of shares of Class B Preferred Stock with the same rights, preferences
and limitations as the Class B Preferred Stock of the Corporation authorized and
outstanding immediately preceding such merger or consolidation, and unless each
holder of Class B Preferred Stock at the time of such merger or consolidation
and in connection therewith shall continue to hold (in the case of a merger in
which the Corporation is the surviving corporation) his Class B Preferred stock,
or (in the case of a consolidation or a merger of the Corporation into some
other corporation) shall receive the same number of shares of Preferred Stock,
with the same rights, preferences and limitations, of such resulting
Corporation; or
(d) amend or repeal any of the provisions of this Section
7 of this Article III, 2, (c).
8. Representations Upon Delivery. Delivery by any holder of Class
B Preferred Stock of a certificate or certificates therefor pursuant to Sections
4 or 5 of this Article III, 2, (c) shall constitute a representation and
warranty by such holder that the shares represented by such certificate or
certificates are owned by such holder free and clear of any encumbrance
whatsoever, that such delivery does not require the consent or approval of any
other party, and
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that no person other than such holder is entitled to receive the cash proceeds
or stock certificates payable or issuable in exchange therefor.
6
18
MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
(FOR BUREAU USE ONLY)
DATE RECEIVED FILED: MARCH 12, 1999
MARCH 10, 1999 ADMINISTRATOR - CORPORATION,
SECURITIES & LAND DEV. BUREAU
JANIS K. KUJAN, LEGAL ASSISTANT
HONIGMAN, MILLER SCHWARTZ AND COHN
2290 FIRST NATIONAL BUILDING
660 WOODWARD AVENUE
DETROIT, MICHIGAN 48226-3583
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
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. A statement of all or any of the relative rights, preferences
and limitations of the shares of each class is as follows:
None
5. (For amendments adopted by unanimous consent of incorporators before
the first meeting of the board of directors or trustees)
19
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(1) 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.
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By: /s/ 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)
3
21
MICHIGAN DEPARTMENT OF CONSUMER & INDUSTRY SERVICES
CORPORATION AND LAND DEVELOPMENT BUREAU
(FOR BUREAU USE ONLY)
DATE RECEIVED
MAY 9, 2000
THIS DOCUMENT IS EFFECTIVE ON THE DATE FILED, UNLESS
A SUBSEQUENT EFFECTIVE DATE WITH 90 DAYS AFTER
RECEIVED DATE IS STATED IN THE DOCUMENT
FILED MAY 9, 2000
ADMINISTRATION - CORPORATION,
SECURITIES
& LAND DEV. BUREAU
EFFECTIVE DATE: 3/12/99
JANIS K. KUJAN, LEGAL ASSISTANT
HONIGMAN, MILLER, SCHWARTZ & Cohn
2290 First National Building
Detroit, Michigan 48226
Document will be returned to the name and address you enter above If left
blank document will be mailed to the registered office.
CERTIFICATE OF CORRECTION
For use by Corporations and Limited Liability Companies
(Please read information and instructions on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), Act 162, Public Acts of 1982 (nonprofit corporations), or
Act 23 Public Acts of 1993 (limited liability companies), the undersigned
corporation or limited liability company executes the following Certificate:
1. The name of the corporation or limited liability company is:
COMPUWARE CORPORATION
2 The identification number assigned by the Bureau is: 008375
3. The corporation or limited liability company is formed under the laws
of the State of MICHIGAN
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4. That a CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION was
filed by the Bureau on March 12, 1999 and that said document requires
correction.
5. Describe the inaccuracy or defect contained in the above named
document:
The amendment filed on March 12, 1999, inaccurately omitted to retain
as authorized Capital Stock 5,000,000 shares, Class A Preferred Stock,
No Par Value.
6. The document is corrected as follows:
See Rider attached hereto.
7. This document is hereby executed in the same manner as the Act requires
the document being corrected to be executed.
Signed this 28th day of April, 2000
By: /s/ Thomas Costello, Jr. By: By:
-------------------------- --------------------- ---------------------
(Signature) (Signature) (Signature)
Thomas Costello, Jr.
Vice President/Secretary
- -------------------------------- --------------------- ---------------------
(Type or Print Name and Title) (Type or Print Name and Title) (Type or Print Name and Title)
2
23
RIDER TO CERTIFICATE OF CORRECTION
AMENDMENT TO ARTICLE III
Article III of the Articles of Incorporation is hereby Amended to read as
follows:
The total authorized Capital Stock is:
1. Common Shares: 1,600,000,000 shares, Common Stock, $.01 Par
Value
Preferred Shares: 5,000,000 shares, Class A, Preferred Stock,
No Par value
2. A statement of all or any of the relative rights, preferences
and limitations of the shares of each Class is as follows:
a. Common Shares. The common shares shall have the
rights, preferences and limitations as provided by
law.
b. Class A Preferred Stock. The Board of Directors may
cause the corporation to issue Class A Preferred
Stock in one or more series, each series to bear a
distinctive designation and to have such relative
rights and preferences as shall be prescribed by
resolutions of the Board of Directors. Such
resolutions, when filed, shall constitute amendments
to these Restated Articles of Incorporation. Except
as otherwise required by law, holders of the Class A
Preferred Stock shall not be entitled to vote on any
matter.
24
CERTIFICATE OF DESIGNATION
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of Filed November 8, 2000
Administrator
Bureau of Commercial Services
COMPUWARE CORPORATION
Pursuant to Section 302 of the
Michigan Business Corporation Act
Compuware Corporation, a Michigan corporation (the "Corporation"),
through the undersigned duly authorized officer, in accordance with the
provisions of Sections 302, 602 and 611 of the Michigan Business Corporation
Act, DOES HEREBY CERTIFY:
That, the Board of Directors of the Corporation on October 23, 2000,
pursuant to the authority conferred upon the Board of Directors by the Articles
of Incorporation, as amended, of the Corporation (the "Articles of
Incorporation") and in accordance with the provisions of Sections 302, 602 and
611 of the Michigan Business Corporation Act, adopted the following resolution
creating a series of 800,000 Series A Junior Participating Preferred Stock, par
value $0.01 per share:
RESOLVED, that, pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation in accordance with the
provisions of the Articles of Incorporation, a series of the Preferred Stock of
the Corporation, par value $0.01 per share, be, and hereby is, created and that
the voting powers, designations, number of shares, preferences and relative,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations and restrictions thereof are as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series A Junior Participating Preferred Stock" (the
"Series A Preferred Stock"), the shares of such series shall be with par value
of $0.01 per share and the number of shares constituting the Series A Preferred
Stock shall be 800,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
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25
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of preferred Stock (or any similar stock) ranking prior and superior to
the Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of Common Stock, par
value $0.01 per share (the "Common Stock"), of the Corporation, and of any other
junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable on the last business day of March, June, September and
December in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date") as provided in paragraphs (B) and (C) of this Section 2
in an amount per share (rounded to the nearest cent) equal to the greater of (a)
$1.00 in cash or (b) subject to the provision for adjustment hereinafter set
forth, 2,000 times the aggregate per share amount (payable in cash) of all cash
dividends, and 2,000 times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions, other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. If the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination of the outstanding shares of
Common Stock (by reclassification or otherwise) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that was outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or distribution on
the Series A Preferred Stock as provided in paragraph (A) of this Section 2
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, if no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share payable in cash
on the Series A Preferred Stock shall nevertheless accrue and be cumulative on
the outstanding shares of Series A Preferred Stock as provided in paragraph (C)
of this Section 2.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares, unless the date of
issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend
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Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provisions for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder thereof
to 2,000 votes on all matters submitted to a vote of the stockholders of the
Corporation. If the Corporation shall at any time declare or pay any dividend on
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination of the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the number of votes per share to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that was
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other Certificate
of Designation creating a series of Preferred Stock or any similar stock, of by
law, the holders of shares of Series A Preferred Stock and the holders of shares
of Common Stock and any other capital stock of the Corporation having general
voting rights shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(C) Except as set forth herein or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, or declared and a sum sufficient for
the payment therefor be set apart for payment and be in the process of payment,
the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
A Preferred Stock;
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27
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
A Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such junior stock
in exchange for shares of any stock of the Corporation ranking junior
(as to both dividends and upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock or any shares of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except in
accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in
good faith will result in fair and equitable treatment among the
holders of the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock subject to the conditions and restrictions on issuance set
forth herein, in the Articles of Incorporation, or in any other Certificate of
Designation creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or as to amounts payable upon liquidation, dissolution or winding up)
to the Series A Preferred Stock unless prior thereto, the holders of Series A
Preferred Stock shall have received an amount per share (rounded to the nearest
cent) equal to the greater of (a) $1,000 per share, or (b) an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 2,000
times the aggregate amount to be distributed per share to holders of Common
Stock, plus, in either case, an amount equal to accrued and unpaid dividends and
distributions
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thereon, whether or not declared, to the date of such payment, or (2) to the
holders of stock ranking on a parity (either as to dividends or as to amounts
payable upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred Stock and all
such parity stock in proportion to the total amounts to which the holders of all
such Shares are entitled upon such liquidation, dissolution or winding up. If
the Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or combination of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause (1)(b) of
the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that was outstanding immediately prior to such
event.
Section 7. Consolidation, Merger, etc. If the Corporation shall
enter into any consolidation, merger, statutory share exchange, combination or
other transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities cash or any other property, or any
combination thereof then in any such case each share of Series A Preferred Stock
shall at the same time be similarly exchanged or changed into an amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
2,000 times the aggregate amount of stock, securities, cash or any other
property (payable in kind), or any combination thereof as the case may be, into
which or for which each share of Common Stock is changed or exchanged If the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that was
outstanding immediately prior to such event.
Section 8. Redemption. The shares of Series A Preferred Stock
shall not be redeemable. So long as any shares of Series A Preferred Stock
remain outstanding, the Corporation shall not purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolving or winding up) to the Series A Preferred Stock unless
the Corporation shall substantially concurrently also purchase or acquire for
consideration a proportionate number of shares of Series A Preferred Stock.
Section 9. Rank. The Series A Preferred Stock shall rank, with
respect to payment of dividends and the distribution of assets, junior to all
series of any other class of the Corporation's Preferred Stock.
IN WITNESS WHEREOF, this Certificate of Designation is executed on
behalf of the Corporation by the undersigned, this 26th day of October, 2000.
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COMPUWARE CORPORATION
By: /s/Joseph A. Nathan
Title: President
ATTEST:
By: /s/Thomas Costello, Jr.
Thomas Costello, Jr., Secretary
Secretary
9