UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
July 6, 2022 (
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Introductory Note
As previously disclosed in the Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) by CDK Global, Inc. (the “Company”) on April 8, 2022, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of April 7, 2022, with Central Parent Inc., a Delaware corporation (formerly known as Central Parent LLC) (“Parent”), and Central Merger Sub Inc., a Delaware corporation and wholly-owned subsidiary of Parent (“Purchaser”). Pursuant to the Merger Agreement, Purchaser commenced a tender offer to acquire all of the outstanding shares of common stock, par value $0.01 per share, of the Company (the “Shares”), at a purchase price of $54.87 per Share in cash, without interest thereon and subject to any tax withholding (the “Offer Price”), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated as of April 22, 2022 (as amended or supplemented, the “Offer to Purchase”) and in the related Letter of Transmittal (which, as amended or supplemented, together with the Offer to Purchase, constitutes the “Offer”).
The Offer and related withdrawal rights expired at 5:00 p.m., New York City time, on Tuesday, July 5, 2022 (such date and time, the “Offer Expiration Time”). Computershare Trust Company, N.A., the depository for the Offer, has advised Parent and Purchaser that, as of the Offer Expiration Time, 67,550,913 Shares (excluding Shares with respect to which notices of guaranteed delivery were delivered but were not yet “received” (as such term is defined in Section 251(h)(6)(f) of the Delaware General Corporation Law (the “DGCL”))) had been validly tendered pursuant to the Offer and not validly withdrawn, representing approximately 57.8% of the outstanding Shares as of the Offer Expiration Time. Accordingly, the Minimum Condition to the Offer (as defined in the Merger Agreement) has been satisfied. As a result of the satisfaction of the Minimum Condition and each of the other conditions to the Offer, on July 6, 2022, Purchaser accepted for payment all Shares that were validly tendered pursuant to the Offer and not validly withdrawn on or prior to the Offer Expiration Time and will promptly pay for such Shares in accordance with the terms of the Offer.
On July 6, 2022, pursuant to the terms of the Merger Agreement and in accordance with Section 251(h) of the DGCL, Purchaser was merged with and into the Company (the “Merger”), without a vote of the Company’s stockholders, with the Company continuing as the surviving corporation in the Merger and as a wholly-owned subsidiary of Parent.
At the effective time of the Merger (the “Effective Time”) and as a result thereof, each Share outstanding immediately prior to the Effective Time (other than (i) Shares irrevocably accepted for purchase by Purchaser in the Offer, (ii) Shares that immediately prior to the Effective Time were owned by the Company, Parent, Purchaser, any other direct or indirect wholly owned subsidiary of Parent or any direct or indirect wholly owned subsidiary of the Company or that were held in the Company’s treasury and (iii) Shares that were issued and outstanding immediately prior to the Effective Time and that were held by a Company stockholder who was entitled to demand and properly demands the appraisal of such Shares in accordance with and complies in all respects with, Section 262 of the DGCL) was automatically converted into the right to receive the Offer Price, without interest thereon and subject to any tax withholding.
In addition, pursuant to the Merger Agreement, as of the Effective Time, (i) each Company stock option that was outstanding immediately prior to the Effective Time, whether vested or unvested, was canceled as of immediately prior to the Effective Time and converted into the right to receive an amount in cash, without interest, equal to the product of (x) the excess, if any, of the Offer Price over the per-share exercise price of the applicable Company stock option, multiplied by (y) the aggregate number of Shares subject to such Company stock option, less applicable taxes required to be withheld; provided, that any Company stock option with a per-share exercise price equal to or greater than the Offer Price was canceled for no consideration; (ii) each Company restricted share that was outstanding immediately prior to the Effective Time became fully vested as of immediately prior to the Effective Time and canceled and converted into the right to receive an amount in cash, without interest, equal to the Offer Price; (iii) each Company restricted stock unit that was outstanding immediately prior to the Effective Time became fully vested as of immediately prior to the Effective Time and canceled and converted into the right to receive an amount in cash, without interest, equal to the Offer Price multiplied by the aggregate number of Shares subject to such Company restricted stock unit immediately before the Effective Time; and (iv) each Company performance stock unit that was outstanding immediately prior to the Effective Time became fully vested as of immediately prior to the Effective Time and canceled and converted into the right to receive an amount in cash, without interest, equal to the Offer Price multiplied by the aggregate number of Shares subject to such Company performance stock unit immediately before the Effective Time (assuming that all applicable performance metrics for performance periods that have not been completed as of immediately before the Effective Time have been achieved (on a cumulative basis and not on individual performance year basis) at the greater of target level and actual performance measured through the Effective Time, with the financial performance metrics in respect of any fiscal year commencing after the 2022 fiscal year being deemed achieved at the target level).
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The aggregate cash consideration to be paid by Parent and Purchaser to complete the Offer and Merger is approximately $8.7 billion without giving effect to related transaction fees and expenses. Parent financed the transactions contemplated by the Merger Agreement through available cash and short- and long-term borrowings.
Item 1.01 Entry into a Material Definitive Agreement.
First Lien Notes
On June 16, 2022, Parent and Purchaser (together with Parent, the “Initial Issuers”) completed a private offering of $750.0 million in aggregate principal amount of their first lien notes due 2029 (the “Notes”). Purchaser is a wholly-owned subsidiary of Parent, and Parent is a wholly-owned subsidiary of Central HoldCo Inc., a Delaware corporation (“Holdings”) formed by affiliates of Brookfield Asset Management Inc. and Brookfield Capital Partners VI L.P. (together, “Brookfield”). In connection with the issuance of the Notes, the Initial Issuers and Holdings entered into an indenture with U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and notes collateral agent (the “Notes Collateral Agent”), governing the Notes (the “Indenture”).
On July 6, 2022, Purchaser merged with and into the Company (together with Parent, the “Issuers” or the “Borrowers”), with the Company as the surviving entity in the Merger. In connection with the Merger, each of the Company’s wholly-owned domestic subsidiaries that guarantee the Issuers’ obligations under the New Credit Facilities (as defined below) (the “Subsidiary Guarantors” and, together with Holdings, the “Guarantors”) and the Trustee and Notes Collateral Agent entered into a supplemental indenture to the Indenture pursuant to which the Subsidiary Guarantors unconditionally guaranteed the Notes.
The Notes accrue interest at a rate of 7.250% per year from the date of issuance until maturity or earlier redemption. Interest on the Notes is payable on June 15 and December 15 of each year, beginning on December 15, 2022. The Notes mature on June 15, 2029.
The Notes are secured by first-priority liens on substantially all of the assets that secure the Issuers’ and the Guarantors’ obligations under the New Credit Facilities, subject to certain exceptions and permitted liens.
At any time prior to June 15, 2025, the Issuers have the option to redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus accrued and unpaid interest, if any, to the date of redemption and a “make-whole” premium. The Notes are redeemable at the option of the Issuers, in whole or in part, at any time on or after June 15, 2025, at specified redemption prices, together with accrued and unpaid interest, if any, to the date of redemption. In addition, the Issuers may redeem (i) up to 40% of the aggregate principal amount of the Notes before June 15, 2025 with the net cash proceeds from certain equity offerings, (ii) up to 10% of the aggregate principal amount of the Notes during any 12-month period prior to June 15, 2025 and/or (iii) at one time prior to June 15, 2023, an aggregate principal amount of the Notes not to exceed the proceeds received from any disposition of the Issuers’ non-automotive Dealer Management System business line, provided that, unless after giving effect to any such redemption all of the outstanding Notes are being redeemed substantially concurrently, the Issuers may redeem no more than $450.0 million in aggregate principal amount of the Notes pursuant to clauses (ii) and (iii) above, in each case, at specified redemption prices. Under the terms of the Notes, certain change of control triggering events will require the Issuers to make an offer to purchase the Notes at a price of 101% of the principal amount thereof, plus accrued and unpaid interest to the purchase date.
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New First Lien Credit Facilities
On July 6, 2022, in connection with the Merger, Holdings and the Borrowers entered into a first lien credit agreement with Credit Suisse AG, New York Branch, as administrative agent and collateral agent, and the lenders party thereto (the “First Lien Credit Agreement”), providing for (x) a 7-year, $3,600.0 million principal amount senior secured U.S. dollar denominated first lien term loan facility (the “New First Lien Term Loan Facility”) and (y) a 5-year, $650.0 million senior secured revolving credit facility (the “New Revolving Facility” and together with the New First Lien Term Loan Facility, the “New First Lien Credit Facilities”). Substantially all of the assets of the Borrowers and the Guarantors are pledged as collateral on a first-priority basis to secure obligations under the New First Lien Credit Facilities (subject to customary exceptions and permitted liens).
The amortization rate for the New First Lien Term Loan Facility is 1.00% per annum in equal quarterly installments.
The First Lien Credit Agreement includes a financial maintenance covenant, applicable only to the New Revolving Facility, requiring that, if extensions of credit under the New Revolving Facility exceed a specified amount as of the last day of the applicable fiscal quarter, the consolidated first lien net leverage ratio of the Company shall not be greater than 9.47:1.00 as of such day.
Borrowings under the New First Lien Credit Facilities bear interest at a rate per annum equal to an applicable margin plus, at the Borrowers’ option: (a) for loans denominated in U.S. dollars, a floating rate of either (1) a base rate determined by reference to the highest of (x) the rate last quoted by The Wall Street Journal as the U.S. “Prime Rate” in effect on such day, (y) the federal funds effective rate plus 0.50% per annum or (z) the applicable Secured Overnight Financing Rate (“SOFR”) (subject to the applicable “floor” of 0.00% per annum for the New Revolving Facility and 0.50% per annum for the New First Lien Term Facility) plus 1.00% per annum; or (2) for term benchmark rate loans, a rate determined by reference to the SOFR rate based on the interest period of the applicable borrowing (subject to the applicable "floor"); and (b) for loans denominated in any other applicable currency, the applicable benchmark rate set forth in the First Lien Credit Agreement for such currency (subject to any applicable “floor”). The applicable interest rate margins for borrowings under the New First Lien Term Loan Facility shall be either (i) 3.25% or 3.50% per annum for base rate loans or (ii) 4.25% or 4.50% per annum for SOFR and other term benchmark rate loans, in each case, based on the then applicable consolidated first lien net leverage ratio of the Company. The applicable interest rate margins for borrowings under the New Revolving Facility range from either (i) 2.50% to 3.00% with respect to base rate and prime rate loans or (ii) from 3.50% to 4.00% with respect to SOFR and other term benchmark rate loans, in each case, based on the then applicable consolidated first lien net leverage ratio of the Company.
New Second Lien Credit Facility
On July 6, 2022, in connection with the Merger, Holdings and the Borrowers entered into a second lien credit agreement with Goldman Sachs Specialty Lending Group, L.P., as administrative agent and collateral agent, and the lenders party thereto (the “Second Lien Credit Agreement”), providing for an 8-year, $755.0 million senior secured U.S. dollar denominated second lien term loan facility and a $65.0 million delayed draw term loan facility (the “New Second Lien Term Loan Facility” and together with the New First Lien Credit Facilities, the “New Credit Facilities”). Substantially all of the assets of the Borrowers and the Guarantors are pledged as collateral on a second-priority basis to secure obligations under the New Second Lien Credit Facility (subject to customary exceptions and permitted liens).
Borrowings under the New Second Lien Term Loan Facility bear interest at a rate per annum equal to an applicable margin plus, at the Borrowers’ option, (a) for base rate loans, a base rate determined by reference to the highest of (1) the rate last quoted by The Wall Street Journal as the U.S. “Prime Rate” in effect on such day, (2) the federal funds effective rate plus 0.50% per annum or (3) the applicable SOFR (which shall not be less than the 0.75% per annum “floor”) plus 1.00% per annum and (b) for term rate loans, the SOFR rate based on the interest period of the applicable borrowing (subject to the 0.75% per annum “floor”).
The First Lien Credit Agreement and the Second Lien Credit Agreement include customary covenants, including, among others, limitations on the ability of the Company and its subsidiaries to: incur indebtedness; pay dividends on capital stock or redeem, repurchase or retire capital stock or certain junior indebtedness; make investments, loans, advances and acquisitions; enter into agreements with negative pledge clauses; engage in transactions with affiliates; sell or dispose of assets; make certain fundamental changes; and create liens.
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The proceeds of the Notes and the borrowings under the New Credit Facilities, together with equity contributions from funds affiliated with Brookfield, were used to (1) pay the cash consideration for the Merger, (2) repay all amounts outstanding under the Revolving Credit Agreement, dated as of May 24, 2021 (as amended, restated, extended, supplemented, increased or otherwise modified in writing from time to time, the “Existing Credit Agreement”), among the Company, the borrowing subsidiaries of the Company party thereto from time to time, the lenders party thereto and Bank of America, N.A. as administrative agent, (3) pay the cash consideration for the Debt Tender Offers (as defined below) and (4) pay fees and expenses related to the foregoing. Any remaining amount will be used for general corporate purposes.
Item 1.02 Termination of a Material Definitive Agreement.
On July 6, 2022, the Company terminated the Existing Credit Agreement. In connection with the termination, the Company repaid all of the outstanding obligations in respect of principal, interest and fees under the Existing Credit Agreement.
Item 2.01 Completion of Acquisition or Disposition of Assets.
The information contained in the Introductory Note of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
On July 6, 2022, the Company notified the Nasdaq Global Select Market (“Nasdaq”) of the consummation of the Merger, and requested that Nasdaq (1) suspend trading of the Shares before the opening of trading on July 6, 2022 and (2) file with the SEC a Notification of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on Form 25 to effect the delisting of shares of the Company’s common stock from Nasdaq and to deregister the Shares under Section 12(b) of the Exchange Act. In addition, the Company intends to file with the SEC a certification on Form 15 under the Exchange Act requesting the Company’s reporting obligations under Sections 13 and 15(d) of the Exchange Act be suspended.
Item 3.03 Material Modification to Rights of Security Holders
The information contained in the Introductory Note, Item 2.01, Item 3.01, Item 5.01 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
Item 5.01 Changes in Control of Registrant.
As a result of Purchaser’s acceptance for payment of all Shares that were validly tendered and not validly withdrawn in accordance with the terms of the Offer and the consummation of the Merger pursuant to Section 251(h) of the DGCL, on July 6, 2022, a change in control of the Company occurred and the Company is now a wholly-owned subsidiary of Parent.
The information contained in the Introductory Note, Item 2.01, Item 5.02 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In accordance with the terms of the Merger Agreement and effective as of the Effective Time, each of Leslie A. Brun, Willie A. Deese, Amy J. Hillman, Brian Krzanich, Stephen A. Miles, Robert E. Radway, Stephen F. Schuckenbrock, Frank S. Sowinski and Eileen J. Voynick resigned from the Company’s board of directors and the committees of the Company’s board of directors.
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Further, pursuant to the Merger Agreement and as of the Effective Time, the directors of Purchaser as of immediately prior to the Effective Time will become the directors of the surviving corporation, and the officers of the Company immediately prior to the Effective Time will remain as officers of the surviving corporation. Information regarding the new directors of the Company has been previously disclosed on Schedule I of the Offer to Purchase as filed with the Tender Offer Statement on Schedule TO filed with the SEC on April 22, 2022, and is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
In connection with the consummation of the Merger, the Company’s certificate of incorporation and its bylaws were amended and restated in their entirety, effective as of the Effective Time. Copies of the certificate of incorporation and bylaws of the Company as currently in effect are filed as Exhibits 3.1 and 3.2 hereto and are incorporated by reference into this Item 5.03.
Item 8.01 Other Events.
On July 6, 2022, in connection with its previously announced tender offers (the “Debt Tender Offers”) to purchase for cash any and all of its issued and outstanding 4.500% Senior Notes due 2024, the interest rate of which adjusts from time to time and is currently 6.500% (the “2024 Notes”), 4.875% Senior Notes due 2027 (the “2027 Notes”) and 5.250% Senior Notes due 2029 (the “2029 Notes” and together with the 2024 Notes and the 2027 Notes, the “Existing Notes”) and related solicitation of consents to the adoption of certain proposed amendments to the indentures governing the Existing Notes pursuant to its Offer to Purchase and Consent Solicitation Statement dated April 20, 2022, as amended from time to time through the date hereof, the Company accepted all of the Existing Notes that were validly tendered and not validly withdrawn as of 5:00 p.m. New York City time on July 5, 2022 (the “Expiration Date”). Upon acceptance of the tendered Existing Notes and consummation of the Merger, the previously executed supplemental indentures related to the Existing Notes became operative. As of the Expiration Date, holders of approximately 93.7%, 94.4% and 98.1% of the outstanding aggregate principal amount of the 2024 Notes, 2027 Notes and 2029 Notes, respectively, had validly tendered and not validly withdrawn their Existing Notes.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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Amended and Restated Certificate of Incorporation of CDK Global, Inc. | |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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CDK Global, inc. | ||
| Date: July 6, 2022 |
/s/ Lee J. Brunz | |
| Lee J. Brunz | ||
| Executive Vice President, General Counsel and Secretary | ||
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CDK GLOBAL, INC.
FIRST: The name of the corporation is CDK Global, Inc. (the “Corporation”).
SECOND: The address of its registered office in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware 19801; and the name of its registered agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (“Delaware Law”).
FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 1,000, and the par value of each such share is $0.01.
FIFTH: The Board of Directors (the “Board”) shall have the power to adopt, amend or repeal the bylaws of the Corporation.
SIXTH: Election of directors need not be by written ballot unless the bylaws of the Corporation so provide.
SEVENTH: The Corporation expressly elects not to be governed by Section 203 of Delaware Law.
EIGHTH:
(1)(a) To the fullest extent permitted under Delaware Law, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.
(1)(b) Any amendment or repeal of Section 1(a) of this ARTICLE EIGHTH shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment or repeal.
(2) The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a "Covered Person") who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a "Proceeding"), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director of the Corporation or an officer of the Corporation appointed by the Board or, while a director of the Corporation or an officer of the Corporation appointed by the Board, is or was serving at the request of the Corporation as a director, officer, employee or agent of another entity or enterprise, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys' fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 4 of this ARTICLE EIGHTH, the Corporation shall be required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if the commencement of such Proceeding (or part thereof) by the Covered Person was authorized by the Board.
(3) To the extent not prohibited by applicable law, the Corporation shall pay the expenses (including attorneys' fees) incurred by a Covered Person in defending any Proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this ARTICLE EIGHTH or otherwise.
(4) If a claim for indemnification or advancement of expenses under this ARTICLE EIGHTH is not paid in full within 30 days after a written claim therefor by the Covered Person has been received by the Corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.
(5) The rights conferred on any Covered Person by this ARTICLE EIGHTH shall not be exclusive of any other rights that such Covered Person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, the bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
(6) The Corporation's obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another entity or enterprise shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other entity or enterprise.
(7) Any amendment or repeal of the foregoing provisions of this ARTICLE EIGHTH shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such amendment or repeal.
(8) This ARTICLE EIGHTH shall not limit the right of the Corporation, to the extent and in the manner permitted by applicable law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.
NINTH: The Corporation reserves the right to amend this Certificate of Incorporation in any manner permitted by Delaware Law and all rights and powers conferred herein on stockholders, directors and officers, if any, are subject to this reserved power.
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
CDK GLOBAL, INC.
* * * * *
Article 1
Offices
Section 1.01. Registered Office. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 1.02. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
Section 1.03. Books. The books of the Corporation may be kept within or without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
Article 2
Meetings of Stockholders
Section 2.01. Time and Place of Meetings. All meetings of stockholders shall be held at such place, either within or without the State of Delaware, on such date and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the absence of a designation by the Board of Directors).
Section 2.02. Annual Meetings. Unless directors are elected by written consent in lieu of an annual meeting as permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (“Delaware Law”), an annual meeting of stockholders, commencing with the year 2022, shall be held for the election of directors and to transact such other business as may properly be brought before the meeting. Stockholders may, unless the certificate of incorporation otherwise provides, act by written consent to elect directors; provided, however, that if such consent is less than unanimous, such action by written consent may be in lieu of holding an annual meeting only if all of the directorships to which directors could be elected at an annual meeting held at the effective time of such action are vacant and are filled by such action.
Section 2.03. Special Meetings. Special meetings of stockholders may be called by the Board of Directors or the Chairman of the Board and shall be called by the Secretary at the request in writing of holders of record of a majority of the outstanding capital stock of the Corporation entitled to vote. Such request shall state the purpose or purposes of the proposed meeting.
Section 2.04. Notice of Meetings and Adjourned Meetings; Waivers of Notice. (a) Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by Delaware Law, such notice shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to vote at such meeting. Unless these bylaws otherwise require, when a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time, place, if any, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
(b) A written waiver of any such notice signed by the person entitled thereto, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.05. Quorum. Unless otherwise provided under the certificate of incorporation or these bylaws and subject to Delaware Law, the presence, in person or by proxy, of the holders of a majority of the outstanding capital stock of the Corporation entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, a majority in voting interest of the stockholders present in person or represented by proxy may adjourn the meeting, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified.
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Section 2.06. Voting. (a) Unless otherwise provided in the certificate of incorporation and subject to Delaware Law, each stockholder shall be entitled to one vote for each outstanding share of capital stock of the Corporation held by such stockholder. Any share of capital stock of the Corporation held by the Corporation shall have no voting rights. Except as otherwise provided by law, the certificate of incorporation or these bylaws, in all matters other than the election of directors, the affirmative vote of the majority of the shares of capital stock of the Corporation present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders.
(b) Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to a corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, appointed by an instrument in writing, subscribed by such stockholder or by his attorney thereunto authorized, or by proxy sent by cable, telegram or by any means of electronic communication permitted by law, which results in a writing from such stockholder or by his attorney, and delivered to the secretary of the meeting. No proxy shall be voted after three (3) years from its date, unless said proxy provides for a longer period.
(c) In determining the number of votes cast for or against a proposal or nominee, shares abstaining from voting on a matter will not be treated as a vote cast.
Section 2.07. Action by Consent. (a) Unless otherwise provided in the certificate of incorporation and subject to the proviso in Section 2.02, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding capital stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to the Corporation as provided in Section 2.07(b).
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(b) Every written consent shall bear the date of signature of each stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this section and Delaware Law to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.
Section 2.08. Organization. At each meeting of stockholders, the Chairman of the Board, if one shall have been elected, or in the Chairman’s absence or if one shall not have been elected, the director designated by the vote of the majority of the directors present at such meeting, shall act as chairman of the meeting. The Secretary (or in the Secretary’s absence or inability to act, the person whom the chairman of the meeting shall appoint secretary of the meeting) shall act as secretary of the meeting and keep the minutes thereof.
Section 2.09. Order of Business. The order of business at all meetings of stockholders shall be as determined by the chairman of the meeting.
Article 3
Directors
Section 3.01. General Powers. Except as otherwise provided in Delaware Law or the certificate of incorporation, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
Section 3.02. Number, Election and Term of Office. (a) The number of directors which shall constitute the whole Board shall be fixed from time to time by resolution of the Board of Directors but shall not be less than three or more than nine. The directors shall be elected at the annual meeting of the stockholders by written ballot, except as provided in Section 2.02 and Section 3.12 herein, and each director so elected shall hold office until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal. Directors need not be stockholders.
(b) Subject to the rights of the holders of any series of preferred stock to elect additional directors under specific circumstances, directors shall be elected by a plurality of the votes of the shares of capital stock of the Corporation present in person or represented by proxy at the meeting and entitled to vote on the election of directors.
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Section 3.03. Quorum and Manner of Acting. Unless the certificate of incorporation or these bylaws require a greater number, a majority of the total number of directors shall constitute a quorum for the transaction of business, and the affirmative vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. When a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Board of Directors may transact any business which might have been transacted at the original meeting. If a quorum shall not be present at any meeting of the Board of Directors the directors present thereat shall adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 3.04. Time and Place of Meetings. The Board of Directors shall hold its meetings at such place, either within or without the State of Delaware, and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the absence of a determination by the Board of Directors).
Section 3.05. Annual Meeting. The Board of Directors shall meet for the purpose of organization, the election of officers and the transaction of other business, as soon as practicable after each annual meeting of stockholders, on the same day and at the same place where such annual meeting shall be held. Notice of such meeting need not be given. In the event such annual meeting is not so held, the annual meeting of the Board of Directors may be held at such place either within or without the State of Delaware, on such date and at such time as shall be specified in a notice thereof given as hereinafter provided in Section 3.07 herein or in a waiver of notice thereof signed by any director who chooses to waive the requirement of notice.
Section 3.06. Regular Meetings. After the place and time of regular meetings of the Board of Directors shall have been determined and notice thereof shall have been once given to each member of the Board of Directors, regular meetings may be held without further notice being given.
Section 3.07. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board or any Managing Partner and shall be called by the Chairman of the Board or Secretary on the written request of three directors. Notice of special meetings of the Board of Directors shall be given to each director at least one calendar day before the date of the meeting in such manner as is determined by the Board of Directors.
Section 3.08. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to any of the following matters: (a) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by Delaware Law to be submitted to the stockholders for approval or (b) adopting, amending or repealing any bylaw of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.
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Section 3.09. Action by Consent. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions, are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 3.10. Telephonic Meetings. Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or such committee, as the case may be, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 3.11 Resignation. Any director may resign at any time by giving notice in writing or by electronic transmission to the Board of Directors or to the Secretary of the Corporation. The resignation of any director shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 3.12. Vacancies. Unless otherwise provided in the certificate of incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the certificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected. Each director so chosen shall hold office until his or her successor is elected and qualified, or until his or her earlier death, resignation or removal. If there are no directors in office, then an election of directors may be held in accordance with Delaware Law. Unless otherwise provided in the certificate of incorporation, when one or more directors shall resign from the Board, effective at a future date, a majority of the directors then in office shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in the filling of other vacancies.
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Section 3.13. Removal. Any director or the entire Board of Directors may be removed, with or without cause, at any time by the affirmative vote of the holders of a majority of the outstanding capital stock of the Corporation then entitled to vote at any election of directors and the vacancies thus created may be filled in accordance with Section 3.12 herein.
Section 3.14. Compensation. Unless otherwise restricted by the certificate of incorporation or these bylaws, the Board of Directors shall have authority to fix the compensation of directors, including fees and reimbursement of expenses.
Article 4
Officers
Section 4.01. Principal Officers. The Board of Directors may from time to time appoint be one or more Managing Partners, one or more Vice Presidents and a Secretary who shall have the duty, among other things, to record the proceedings of the meetings of stockholders and directors in a book kept for that purpose. The Corporation may also have such other principal officers, including one or more Controllers, as the Board may in its discretion appoint. One person may hold the offices and perform the duties of any two or more of said offices, except that no one person shall hold the offices and perform the duties of President (if any) and Secretary.
Section 4.02. Election, Term of Office and Remuneration. The principal officers of the Corporation shall be elected annually by the Board of Directors at the annual meeting thereof. Each such officer shall hold office until his or her successor is elected and qualified, or until his or her earlier death, resignation or removal. The remuneration of all officers of the Corporation shall be fixed by the Board of Directors. Any vacancy in any office shall be filled in such manner as the Board of Directors shall determine.
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Section 4.03. Subordinate Officers. In addition to the principal officers enumerated in Section 4.01 herein, the Corporation may have one or more Assistant Treasurers, Assistant Secretaries and Assistant Controllers and such other subordinate officers, agents and employees as the Board of Directors may deem necessary, each of whom shall hold office for such period as the Board of Directors may from time to time determine. The Board of Directors may delegate to any principal officer the power to appoint and to remove any such subordinate officers, agents or employees.
Section 4.04. Removal. Except as otherwise permitted with respect to subordinate officers, any officer may be removed, with or without cause, at any time, by resolution adopted by the Board of Directors.
Section 4.05. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors (or to a principal officer if the Board of Directors has delegated to such principal officer the power to appoint and to remove such officer). The resignation of any officer shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4.06. Powers and Duties. The officers of the Corporation shall have such powers and perform such duties incident to each of their respective offices and such other duties as may from time to time be conferred upon or assigned to them by the Board of Directors.
Article 5
Capital Stock
Section 5.01. Certificates for Stock; Uncertificated Shares. The shares of the Corporation shall be uncertificated, provided that the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be certificated shares. Except as otherwise provided by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of shares represented by certificates of the same class and series shall be identical. Every holder of stock represented by certificates shall be entitled to have a certificate signed by, or in the name of, the Corporation by any two authorized officers of the Corporation representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. A Corporation shall not have power to issue a certificate in bearer form.
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Section 5.02. Transfer of Shares. Shares of the stock of the Corporation may be transferred on the record of stockholders of the Corporation by the holder thereof or by such holder’s duly authorized attorney upon surrender of a certificate therefor properly endorsed or upon receipt of proper transfer instructions from the registered holder of uncertificated shares or by such holder’s duly authorized attorney and upon compliance with appropriate procedures for transferring shares in uncertificated form, unless waived by the Corporation.
Section 5.03. Authority for Additional Rules Regarding Transfer. The Board of Directors shall have the power and authority to make all such rules and regulations as they may deem expedient concerning the issue, transfer and registration of certificated or uncertificated shares of the stock of the Corporation, as well as for the issuance of new certificates in lieu of those which may be lost or destroyed, and may require of any stockholder requesting replacement of lost or destroyed certificates, bond in such amount and in such form as they may deem expedient to indemnify the Corporation, and/or the transfer agents, and/or the registrars of its stock against any claims arising in connection therewith.
Article 6
General Provisions
Section 6.01. Fixing the Record Date. (a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by Delaware Law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by Delaware Law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
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(c) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 6.02. Dividends. Subject to limitations contained in Delaware Law and the certificate of incorporation, the Board of Directors may declare and pay dividends upon the shares of capital stock of the Corporation, which dividends may be paid either in cash, in property or in shares of the capital stock of the Corporation.
Section 6.03. Year. The fiscal year of the Corporation shall commence on January 1 and end on December 31 of each year.
Section 6.04. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 6.05. Voting of Stock Owned by the Corporation. The Board of Directors may authorize any person, on behalf of the Corporation, to attend, vote at and grant proxies to be used at any meeting of stockholders of any corporation (except this Corporation) in which the Corporation may hold stock.
Section 6.06. Execution of Documents. Deeds, transfers, assignments, agreements, contracts, obligations and other instruments in writing requiring execution by the Corporation may be signed by any director or any officer, or in such other manner as the Board of Directors may determine.
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Section 6.07. Amendments. These bylaws or any of them, may be altered, amended or repealed, or new bylaws may be made, by the stockholders entitled to vote thereon at any annual or special meeting thereof or by the Board of Directors.
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Cover |
Jul. 05, 2022 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Jul. 05, 2022 |
| Current Fiscal Year End Date | --06-30 |
| Entity File Number | 001-36486 |
| Entity Registrant Name | CDK GLOBAL, INC. |
| Entity Central Index Key | 0001609702 |
| Entity Tax Identification Number | 46-5743146 |
| Entity Incorporation, State or Country Code | DE |
| Entity Address, Address Line One | 1950 Hassell Road |
| Entity Address, City or Town | Hoffman Estates |
| Entity Address, State or Province | IL |
| Entity Address, Postal Zip Code | 60169 |
| City Area Code | 847 |
| Local Phone Number | 397-1700 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Title of 12(b) Security | Common Stock, $0.01 Par Value |
| Trading Symbol | CDK |
| Security Exchange Name | NASDAQ |
| Entity Emerging Growth Company | false |
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