Exhibit 10.1
SEPARATION AND DISTRIBUTION AGREEMENT
between
AUTOMATIC DATA PROCESSING, INC.
and BROADRIDGE FINANCIAL SOLUTIONS, LLC
Dated as of March 20, 2007
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 2
Section 1.1 Definitions 2
Section 1.2 General Interpretive Principles 11
ARTICLE II THE PRE-DISTRIBUTION TRANSACTIONS 12
Section 2.1 Restructuring, Recapitalization and Other Transactions 12
Section 2.2 Broadridge Cash Dividend 12
Section 2.3 The Separation and Related Transactions 12
Section 2.4 Conditions Precedent to Consummation of the Pre-Distribution Transactions 18
ARTICLE III THE DISTRIBUTION 19
Section 3.1 Actions Prior to the Distribution 19
Section 3.2 The Distribution 20
Section 3.3 Conditions to Distribution 21
ARTICLE IV SURVIVAL AND INDEMNIFICATION; RELEASE 23
Section 4.1 Survival of Agreements 23
Section 4.2 Indemnification by Broadridge 23
Section 4.3 Indemnification by ADP 24
Section 4.4 Insurance 24
Section 4.5 Procedures for Indemnification of Third Party Claims 25
Section 4.6 Procedures for Indemnification of Non-Third Party Claims 27
Section 4.7 Survival of Indemnities 27
Section 4.8 Remedies Cumulative 27
Section 4.9 Ancillary Agreements 27
Section 4.10 Mutual Release. 27
ARTICLE V ANCILLARY AGREEMENTS 29
Section 5.1 Data Center Outsourcing Services Agreement 29
Section 5.2 Employee Matters Agreement 29
Section 5.3 Intellectual Property Transfer Agreement 29
Section 5.4 Tax Allocation Agreement 30
Section 5.5 Transition Services Agreement 30
ARTICLE VI CERTAIN ADDITIONAL COVENANTS 30
Section 6.1 Consents for Business 30
Section 6.2 Additional Consents 30
Section 6.3 Further Assurances 30
(i)
Section 6.4 Future Activities 31
Section 6.5 Settlement of Certain Insurance Claims 32
Section 6.6 Transitional Use of ADP Name 32
ARTICLE VII ACCESS TO INFORMATION 33
Section 7.1 Agreement for Exchange of Information 33
Section 7.2 Ownership of Information 34
Section 7.3 Compensation for Providing Information 34
Section 7.4 Record Retention 35
Section 7.5 Limitation of Liability 35
Section 7.6 Other Agreements Providing for Exchange of Information 35
Section 7.7 Production of Witnesses; Records; Cooperation 35
Section 7.8 Confidentiality 36
ARTICLE VIII NO REPRESENTATIONS OR WARRANTIES 38
Section 8.1 NO REPRESENTATIONS OR WARRANTIES 38
ARTICLE IX TERMINATION 39
Section 9.1 Termination 39
Section 9.2 Effect of Termination 39
ARTICLE X MISCELLANEOUS 39
Section 10.1 Complete Agreement; Representations 39
Section 10.2 Costs and Expenses 40
Section 10.3 Governing Law 40
Section 10.4 Notices 40
Section 10.5 Amendment, Modification or Waiver 41
Section 10.6 No Assignment; Binding Effect; No Third Party Beneficiaries 41
Section 10.7 Counterparts 42
Section 10.8 Negotiation 42
Section 10.9 Specific Performance 42
Section 10.10 New York Forum 42
Section 10.11 WAIVER OF JURY TRIAL 43
Section 10.12 Interpretation; Conflict With Ancillary Agreements 43
Section 10.13 Severability 43
(ii) EXHIBITS Bylaws of Broadridge Exhibit A Certificate of Incorporation of Broadridge Exhibit B Form of Data Center Outsourcing Services Agreement Exhibit C Form of Employee Matters Agreement Exhibit D Form of Intellectual Property Transfer Agreement Exhibit E Form of Tax Allocation Agreement Exhibit F Form of Transition Services Agreements Exhibit G SCHEDULES ADP Assigned Agreements Schedule 2.3(c)(i) Broadridge Assigned Agreements Schedule 2.3(c)(ii) Surviving ADP Group and Broadridge Group Agreements Schedule 2.3(d) Guarantee Fees Schedule 2.3(f) ADP Statements in Information Statement Schedule 4.3(d) Transaction Expenses Schedule 10.2 ANNEXES Timeline Annex A
(iii)
SEPARATION AND DISTRIBUTION AGREEMENT SEPARATION AND DISTRIBUTION AGREEMENT dated as of March 20, 2007, between Automatic Data Processing, Inc., a Delaware corporation (" ADP" ), and Broadridge Financial Solutions, LLC, a Delaware limited liability company whose sole member is ADP (each, a " Party" and collectively, the " Parties" ). RECITALS
WHEREAS, the Board of Directors of ADP has determined that it is in the best interests of ADP to separate the Broadridge Business (as defined below) and the ADP Business (as defined below) into two independent companies (the " Separation" ), on the terms and subject to the conditions set forth in this Agreement, in order to provide greater flexibility for the management, capital requirements and growth of the Broadridge Business while ensuring that ADP can focus its time and resources on the development of the ADP Business;
WHEREAS, to effect the Separation, Broadridge (as defined below) intends to retain ownership and possession of all Broadridge Assets (as defined below) and ADP intends to retain ownership and possession of all ADP Assets (as defined below);
WHEREAS, to further effect the Separation, Broadridge intends to remain solely liable for all Broadridge Liabilities (as defined below) and ADP intends to remain solely liable for all ADP Liabilities (as defined below); WHEREAS, to further effect the Separation, and as an integral part thereof, ADP intends to cause the Restructuring (as defined below) to occur prior to the Separation;
WHEREAS, it is the intention of the Parties that, following the Restructuring and the Separation but prior to the Distribution (as defined below), Broadridge will be converted from a Delaware limited liability company into a Delaware corporation pursuant to Section 18-216 of the Delaware Limited Liability Act (the " LLC Conversion" ), and will be recapitalized such that all of the shares of common stock of Broadridge, par value $0.01 per share (" Broadridge Common Stock" ), then outstanding will be owned by ADP; WHEREAS, following the Restructuring, the Separation and the LLC Conversion but prior to the Distribution, Broadridge intends to effect the Broadridge Cash Dividend (as defined below);
WHEREAS, following the Restructuring, the Separation, the LLC Conversion and the Broadridge Cash Dividend, ADP intends to distribute on a pro rata basis to holders of issued and outstanding shares of common stock, par value $0.10 per share, of ADP (" ADP Common Stock" ), other than shares of ADP Common Stock held in the treasury of ADP, all of the issued and outstanding shares of Broadridge Common
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Stock owned by ADP, by means of a dividend of the Broadridge Common Stock to ADP' s stockholders (the " Distribution" ), on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, it is the intention of the Parties that, for United States federal income tax purposes, (i) the U.S. Restructuring (as defined below) shall qualify as tax-free pursuant to Section 332 of the U.S. Internal Revenue Code of 1986, as amended (the " Code" ), (ii) the Dutch Restructuring (as defined below) shall qualify as a tax-free split-off pursuant to Sections 368(a)(1)(D) and 355 of the Code, (iii) the Canadian Restructuring (as defined below) shall qualify as a tax-free split-off pursuant to Sections 368(a)(1)(D) and 355 of the Code, (iv) the LLC Conversion and the Distribution shall qualify as a tax-free spin-off pursuant to Sections 368(a)(1)(D) and 355 of the Code and (v) this Agreement shall constitute, and is hereby adopted as, a plan of liquidation under Section 332 of the Code and a plan of reorganization under Section 368 of the Code;
WHEREAS, the Board of Directors of ADP has (i) determined that the Restructuring, the Separation, the LLC Conversion, the Broadridge Cash Dividend, the Distribution and the other transactions contemplated by this Agreement and the Ancillary Agreements (as defined below) are in furtherance of and consistent with its business strategy and are in the best interests of ADP and (ii) approved this Agreement and each of the Ancillary Agreements; and WHEREAS, the Restructuring, the Separation, the LLC Conversion, the Broadridge Cash Dividend, the Distribution and the other transactions contemplated by this Agreement and the Ancillary Agreements (as defined below) shall be consummated in the order and in the manner described on the timeline attached hereto as Annex A ; and WHEREAS, it is appropriate and desirable to set forth the principal corporate transactions required to effect the Separation, the Broadridge Cash Dividend and the Distribution and certain other agreements that will govern certain matters relating to these transactions and the relationship of ADP and Broadridge and their respective subsidiaries following the Distribution. NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions . As used in this Agreement, the following terms shall have the meanings set forth below:
" Action" means any claim, demand, action, cause of action, suit, countersuit, arbitration, litigation, inquiry, proceeding or investigation by or before any Governmental Authority or any arbitration or mediation tribunal or authority.
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" ADP" has the meaning assigned to such term in the Preamble hereto. " ADP Assets" means all Assets of the ADP Group (including the amount of the Broadridge Cash Dividend after declaration thereof), other than the Broadridge Assets.
" ADP Business" means all businesses and operations of the ADP Group, other than the Broadridge Business.
" ADP Claims" has the meaning assigned to such term in Section 4.10(a). " ADP Common Stock" has the meaning assigned to such term in the Recitals hereto. " ADP Group" means ADP and each of its Affiliates and Subsidiaries, and any corporation or other entity that may become part of such Group from time to time, other than the Broadridge Group.
" ADP Indemnified Parties" has the meaning assigned to such term in Section 4.2.
" ADP Liabilities" means those Liabilities of ADP, other than the Broadridge Liabilities.
" ADP Parties" has the meaning assigned to such term in Section 4.10(b). " ADP Releasors" has the meaning assigned to such term in Section 4.10(a). " Affiliate" means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such specified Person; provided , however , that for purposes of this Agreement, no member of either Group shall be deemed to be an Affiliate of any member of the other Group. As used herein, " control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise.
" Agreement" means this Agreement, as the same may be modified, amended or supplemented from time to time.
" Ancillary Agreements" means the Employee Matters Agreement, the Intellectual Property Transfer Agreement, the Data Center Outsourcing Services Agreement, the Transition Services Agreement and the Tax Allocation Agreement.
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" Asset" means any right, property or asset, whether real, personal or mixed, tangible or intangible, of any kind, nature and description, whether accrued, contingent or otherwise, and wheresoever situated and whether or not carried or reflected, or required to be carried or reflected, on the books of any Person. " Balance Sheet" has the meaning assigned to such term in the definition of " Broadridge Assets." " Broadridge" means, prior to the LLC Conversion, Broadridge Financial Solutions, LLC, a Delaware limited liability company whose sole member is ADP and, immediately after the LLC Conversion, Broadridge Financial Solutions, Inc., a Delaware corporation whose sole shareholder is ADP.
" Broadridge Assets" means, without duplication:
(i) all of the outstanding shares of all classes of capital stock of (or other equity interests in) Broadridge Subsidiaries owned (either of record or beneficially) by Broadridge or a Broadridge Subsidiary, as of the Effective Time; (ii) all of the Assets included on the unaudited pro forma combined balance sheet of Broadridge, including the notes thereto, as of December 31, 2006 that is included in the Registration Statement (the " Balance Sheet" ) to the extent such Assets would have been included as Assets on a consolidated balance sheet of Broadridge, and the notes thereto, as of the Effective Time (were such balance sheet and notes to be prepared) on a basis consistent with the determination of Assets included on the Balance Sheet;
(iii) all other Assets that are of a nature or type that would have resulted in such Assets being included as Assets on a consolidated balance sheet of Broadridge, and the notes thereto, as of the Effective Time (were such balance sheet and notes to be prepared) on a basis consistent with the determination of Assets included on the Balance Sheet;
(iv) the Assets expressly contributed, assigned, transferred, conveyed or delivered to any member of the Broadridge Group pursuant to the Ancillary Agreements;
(v) the contract rights, licenses, Trade Secrets, know-how, and any other rights and Intellectual Property, and any other rights, claims or properties (including any and all rights as an insured party under any ADP insurance policy), in each case of any member of the Broadridge Group and as of the Effective Time; and
(vi) all other Assets that are held by any member of the Broadridge Group as of the Effective Time and that are used or held primarily for use in or necessary to the operation of the Broadridge Business.
" Broadridge Business" means the business and operations conducted by the Broadridge Group from time to time, whether prior to, at or after the Effective Time,
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including, without duplication, (i) the Brokerage Services and Securities Clearing and Outsourcing Services Businesses conducted by ADP prior to the Restructuring and (ii) the business and operations conducted by the Broadridge Group, as more fully described in the Information Statement.
" Broadridge Bylaws" means the Bylaws of Broadridge substantially in the form of Exhibit A hereto.
" Broadridge Cash Dividend" means (i) the borrowing under the new credit facility to be entered into by Broadridge as described in the Registration Statement and (ii) the distribution of $690 million of the proceeds of such borrowing as well as approximately $60 million from ADP' s Canadian subsidiaries to ADP in one or more transactions intended to qualify as tax-free pursuant to Section 361(b) of the Code. " Broadridge Certificate of Incorporation" means the Certificate of Incorporation of Broadridge substantially in the form of Exhibit B hereto.
" Broadridge Claims" has the meaning assigned to such term in Section 4.10(b). " Broadridge Common Stock" has the meaning assigned to such term in the Recitals hereto. " Broadridge Group" means Broadridge and each of its Subsidiaries and Affiliates and any corporation or other entity that may become part of such Group from time to time.
" Broadridge Indemnified Parties" has the meaning assigned to such term in Section 4.3.
" Broadridge Liabilities" means, without duplication: (i) all outstanding Liabilities included on the Balance Sheet, to the extent such Liabilities would have been included on a consolidated balance sheet of Broadridge, and the notes thereto, as of the Effective Time (were such balance sheet and notes to be prepared) on a basis consistent with the determination of Liabilities included on the Balance Sheet; (ii) all other Liabilities that are of a nature or type that would have resulted in such Liabilities being included as Liabilities on a consolidated balance sheet of Broadridge, and the notes thereto, as of the Effective Time (were such balance sheet and notes to be prepared) on a basis consistent with the determination of Liabilities included on the Balance Sheet; (iii) all Liabilities expressly assumed by any member of the Broadridge Group pursuant to the Ancillary Agreements; and
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(iv) all Liabilities to the extent relating to, arising out of or resulting from actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to, at or after the Effective Time, in each case to the extent such Liabilities relate to, arise out of or result from any Broadridge Asset or the Broadridge Business.
" Broadridge Parties" has the meaning assigned to such term in Section 4.10(a). " Broadridge Releasors" has the meaning assigned to such term in Section 4.10(b). " Brokerage Services and Securities Clearing and Outsourcing Services Businesses" means all of the ADP Brokerage Services' and Securities Clearing and Outsourcing Services' business and operations, as more fully described in ADP' s Form 10-K for the fiscal year ended June 30, 2006.
" Business" means the Broadridge Business and/or the ADP Business, as the context requires.
" Canadian Restructuring" means the transfer of the Brokerage Services and Securities Clearing and Outsourcing Services Businesses conducted, directly or indirectly, by ADP Canada Co., a Canadian corporation, to a new Canadian company that will be transferred to a second Canadian company that will be a subsidiary of Broadridge in a transaction intended to qualify as a tax-free split-off pursuant to Sections 368(a)(1)(D) and 355 of the Code. " Code" has the meaning assigned to such term in the Recitals hereto. " Consents" means any consents, waivers, notices, reports or other filings to be made, or any registrations, licenses, permits, authorizations to be obtained from, or approvals from, or notification requirements to, any third parties, including any Governmental Authority.
" Continuing ADP Guarantees" has the meaning assigned to such term in Section 2.3(f)(ii).
" Data Center Outsourcing Services Agreement" means the Data Center Outsourcing Services Agreement to be entered into between ADP, Inc. and Broadridge, substantially in the form attached hereto as Exhibit C , with such changes as may be agreed to by the Parties.
" Delayed Transfer Asset and/or Liability" has the meaning assigned to such term in Section 2.3(b).
" Dispute Escalation Notice" has the meaning assigned to such term in Section 10.8.
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" Distribution" has the meaning assigned to such term in the Recitals hereto.
" Distribution Agent" means American Stock Transfer & Trust Company. " Distribution Agent Agreement" has the meaning assigned to such term in Section 3.1(b). " Distribution Date" means the date on which the Distribution shall be effected, such date to be determined by, or under the authority of, the Board of Directors of ADP in its sole and absolute discretion.
" Dutch Restructuring" means the transfer of the Brokerage Services and Securities Clearing and Outsourcing Services Businesses conducted by the subsidiaries of ADP Nederland BV, a Dutch corporation, to a new Dutch company that will be transferred to a second Dutch company that will be a subsidiary of Broadridge in a transaction intended to qualify as a tax-free split-off pursuant to Sections 368(a)(1)(D) and 355 of the Code.
" Effective Time" means the time at which the Distribution occurs on the Distribution Date.
" Employee Matters Agreement" means the Employee Matters Agreement to be entered into between ADP and Broadridge, substantially in the form of Exhibit D hereto, with such changes as may be agreed to by the Parties. " Exchange Act" means the United States Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.
" FIFO Basis" means, with respect to the payment of Unrelated Claims pursuant to the same ADP insurance policy, the payment in full of each successful claim (regardless of whether ADP or Broadridge is the claimant) in the order in which such successful claim is approved by the insurance carrier, until the limit of the applicable ADP insurance policy is met.
" Governmental Authority" means any federal, state, local, foreign or international court, government, department, commission, board, bureau or agency, or any other regulatory, self-regulatory, administrative or governmental organization or authority, including the NYSE.
" Group" means the ADP Group and/or the Broadridge Group, as the context requires.
" Indemnified Party" has the meaning assigned to such term in Section 4.3.
" Indemnifying Party" means Broadridge, for any indemnification obligation arising under Section 4.2, and ADP, for any indemnification obligation arising under Section 4.3.
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" Information" means all information of either the ADP Group or the Broadridge Group, as the context requires, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including non-public financial information, studies, reports, records, books, accountants' work papers, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other Software (as defined in the definition of " Intellectual Property" ), marketing plans, customer data, communications by or to attorneys, memos and other materials prepared by attorneys and accountants or under their direction (including attorney work product), and other technical, financial, legal, employee or business information or data.
" Information Statement" means the information statement and any related documentation to be distributed to holders of ADP Common Stock in connection with the Distribution, including any amendments or supplements thereto.
" Intellectual Property" means all intellectual property and other similar proprietary rights in any jurisdiction, whether owned or held for use under license, whether registered or unregistered, including such rights in and to: (i) trademarks, trade dress, service marks, certification marks, logos, and trade names, and the goodwill associated with the foregoing (collectively, " Trademarks" ); (ii) patents and patent applications, and any and all divisions, continuations, continuations-in-part, reissues, continuing patent applications, reexaminations, and extensions thereof, any counterparts claiming priority therefrom, utility models, patents of importation/confirmation, certificates of invention, certificates of registration, design registrations or patents and like rights (collectively, " Patents" ); inventions, invention disclosures, discoveries and improvements, whether or not patentable; (iii) writings and other works of authorship (" Copyrights" ); (iv) trade secrets (including, those trade secrets defined in the Uniform Trade Secrets Act and under corresponding foreign statutory Law and common law), Information, business, technical and know-how information, business processes, non-public information, proprietary information and confidential information and rights to limit the use or disclosure thereof by any Person (collectively, " Trade Secrets" ); (v) software, including data files, source code, object code, application programming interfaces, databases and other software-related specifications and documentation (collectively, " Software" ); (vi) domain names and uniform resource locators; (vii) moral rights; (viii) privacy and publicity rights; (ix) any and all technical information, Software, specifications, drawings, records, documentation, works of authorship or other creative works, ideas, knowledge, invention disclosures or other data, not including works subject to Copyright, Patent or Trademark protection (" Technology" ); (x) advertising and promotional materials, whether or not copyrightable; and (xi) claims, causes of action and defenses relating to the enforcement of any of the foregoing; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing with or by any Governmental Authority in any jurisdiction. " Intellectual Property Transfer Agreement" means the Intellectual Property Transfer Agreement to be entered into between ADP and Broadridge, substantially in the form attached hereto as Exhibit E , with such changes as may be agreed to by the Parties.
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" Inter-Group Indebtedness" means any intercompany receivables, payables, accounts, advances, loans, guarantees, commitments and indebtedness for borrowed funds between a member of the ADP Group and a member of the Broadridge Group; provided , that " Inter-Group Indebtedness" shall not include any contingent Liabilities and accounts payable arising pursuant to the Ancillary Agreements, any agreements with respect to continuing transactions between a member of the ADP Group and a member of the Broadridge Group and any other agreements entered into in the ordinary course of business.
" Law" means any applicable foreign, federal, national, state, provincial or local law (including common law), statute, ordinance, rule, regulation, code or other requirement enacted, promulgated, issued or entered into, or act taken, by a Governmental Authority. " Liabilities" means all debts, liabilities, obligations, responsibilities, response actions, Losses, damages (whether compensatory, punitive, consequential, treble or other), fines, penalties and sanctions, absolute or contingent, matured or unmatured, liquidated or unliquidated, foreseen or unforeseen, on- or off-balance sheet, joint, several or individual, asserted or unasserted, accrued or unaccrued, known or unknown, whenever arising, including those arising under or in connection with any Law, or other pronouncements of Governmental Authorities constituting an Action, order or consent decree of any Governmental Authority or any award of any arbitration tribunal, and those arising under any contract, guarantee, commitment or undertaking, whether sought to be imposed by a Governmental Authority, private party, or a Party, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, or otherwise, and including any costs, expenses, interest, attorneys' fees, disbursements and expense of counsel, expert and consulting fees, fees of third party administrators, and costs related thereto or to the investigation or defense thereof.
" LLC Conversion" has the meaning assigned to such term in the Recitals hereto.
" Loss" means any claim, demand, complaint, damages, loss, liability, cost or expense arising out of, relating to or in connection with any Action.
" Mixed Account" has the meaning assigned to such term in Section 2.3(g)(ii).
" Mixed Contract" has the meaning assigned to such term in Section 2.3(g)(i).
" NYSE" means the New York Stock Exchange, Inc. " Parties" has the meaning assigned to such term in the Preamble hereto.
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" Person" means any natural person, corporation, general or limited partnership, limited liability company or partnership, joint stock company, joint venture, association, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, and any Governmental Authority. " Pre-Distribution Transactions" means, collectively, the Restructuring, the Separation, the LLC Conversion, the Recapitalization and the Broadridge Cash Dividend.
" Recapitalization" has the meaning assigned to such term in Section 2.1(c). " Record Date" means the date to be determined by the Board of Directors of ADP as the record date for determining stockholders of ADP entitled to receive shares of Broadridge Common Stock pursuant to the Distribution.
" Registration Statement" means the Registration Statement on Form 10 of B
