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TAX ALLOCATION AGREEMENT
By and between
AUTOMATIC DATA PROCESSING, INC.
BROADRIDGE FINANCIAL SOLUTIONS, INC.
Dated as of March 29, 2007
TABLE OF CONTENTS
TAX ALLOCATION AGREEMENT dated as of March 29, 2007 (this “ Agreement ”) between Automatic Data Processing, Inc., a Delaware corporation (“ ADP ”) and Broadridge Financial Solutions, Inc., a Delaware corporation whose sole shareholder is ADP (“ Broadridge ” and, together with ADP, each, a “ Party ” and collectively, the “ Parties ”).
WHEREAS, as of the date of this Agreement, the ADP affiliated group includes Broadridge and its subsidiaries;
WHEREAS, the Parties (or their predecessors-in-interest) have entered into the Separation and Distribution Agreement, pursuant to which ADP has contributed to Broadridge the stock and assets associated with the Broadridge Business (as defined herein) in exchange for shares of common stock of Broadridge, cash and the assumption by Broadridge of certain liabilities related to the Broadridge Business (the “ Contribution ”);
WHEREAS, ADP intends to distribute on a pro rata basis to its shareholders all of the shares of stock of Broadridge (the “ Distribution ”);
WHEREAS, the Parties believe the Distribution will provide greater flexibility for management, capital requirements and growth of the Broadridge Business while ensuring that ADP senior management can focus its time and resources on the development of the ADP retained businesses;
WHEREAS, the Parties intend that the Contribution and Distribution qualify as a “reorganization” under Section 368(a) of the U.S. Internal Revenue Code of 1986, as amended (the “ Code ”), with respect to which no gain or loss is recognized under Code Sections 361 and 355;
WHEREAS, as a result of and upon the Distribution, Broadridge and its subsidiaries will cease to be members of the ADP Group; and
WHEREAS, the Parties desire to allocate the Tax responsibilities, liabilities and benefits of transactions that occur on or prior to, and that may occur after, the date on which the Distribution occurs (the “ Distribution Date ”) and to provide for and address certain other Tax matters.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Parties (each on behalf of itself and each of its Affiliates) hereby agree as follows:
Section 1.01 Definition of Terms . The following terms shall have the following meanings (such meanings to apply equally to both the singular and the plural forms of the terms defined). All Section and Exhibit references are to this Agreement unless otherwise stated.
“ 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.
“ Active Trade or Business ” means the active conduct by Broadridge of the businesses conducted by the members of the Broadridge Group as of the Distribution (determined in accordance with Code Section 355(b)).
“ Adjustment Request ” means any formal or informal claim or request filed with any governmental authority for any Refund, underpayment or overpayment of Tax or any change in available Tax Attributes.
“ ADP ” has the meaning set forth in the recitals.
“ ADP Consolidated Group ” means the affiliated group of corporations (within the meaning of Section 1504 of the Code) of which ADP is the common parent prior to the Distribution Date.
“ ADP Employee ” means an employee of ADP or any ADP Affiliate immediately after the Distribution.
“ 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. For the avoidance of doubt, the ADP Group excludes any entity that is a member of the Broadridge Group.
“ ADP Restricted Stock ” means ADP common stock received by an ADP or Broadridge Employee in connection with his or her employment, which stock has not yet been included in the income of such Employee as of the Distribution Date.
“ ADP Stock Option ” means an Option to acquire ADP common stock received by an ADP or Broadridge Employee in connection with his or her employment, which Option has not yet been exercised as of the Distribution Date.
“ Affiliate ” of any Person means any entity that, after the Distribution, is directly or indirectly “controlled” by any of (i) the Person in question, (ii) any Person of which the Person in question is an Affiliate under clause (i), or (iii) any Affiliate under clause (i) of a Person described in clause (ii). For purposes of this definition, “ control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or other interests, by contract or otherwise.
“ Agreement ” has the meaning set forth in the recitals.
“ Ancillary Agreement ” has the meaning set forth in the Separation and Distribution Agreement.
“ APA ” means the advance pricing agreement currently being negotiated, as such agreement is finally agreed, or any similar agreement (including any related competent authority agreement for pre-APA years) that is finally agreed, by ADP, ADP Canada, a Canadian corporation that is wholly owned by ADP, and ADP Investor Communications Corporation (“ ICC ”), a Canadian corporation that is directly and wholly owned by ADP Canada, with the Internal Revenue Service and the Canada Revenue Agency (including any competent authority for the United States or Canada) relating to the pricing of services and software that ADP and its U.S. subsidiaries (both in the Broadridge Business and in ADP’s other businesses) provide to ADP Canada and its subsidiaries.
“ Balance Sheet ” has the meaning set forth in Section 2.01(a).
“ Broadridge ” has the meaning set forth in the recitals.
“ Broadridge Business ” 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.
“ Broadridge Capital Stock ” means (i) all classes or series of capital stock of Broadridge, including common stock and all other instruments treated as equity in Broadridge for U.S. federal Income Tax purposes and (ii) all options, warrants and other rights to acquire such capital stock.
“ Broadridge Cash ” means the cash amounts which are distributed to ADP in one or more transactions intended to qualify as tax-free pursuant to Section 361(b) of the Code.
“ Broadridge Employee ” means an employee of Broadridge or any Broadridge Affiliate immediately after the Distribution.
“ 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 Restricted Stock ” means Broadridge common stock received by a Broadridge Employee or ADP Employee in connection with his or her employment, which stock has not yet been included in the income of such Employee as of the Distribution Date.
“ Broadridge Stock Option ” means an Option to acquire Broadridge common stock received by a Broadridge Employee or ADP Employee in connection with his or her employment, which Option has not yet been exercised as of the Distribution Date.
“ Butterfly Transactions ” means each of the transactions involving ADP, Broadridge and the other applicable parties specifically set out in the Canadian Tax Ruling.
“ Canadian Tax Ruling ” means the advance income tax ruling issued by the CRA (whether granted prior to, on or after the date hereof) relating to the Butterfly Transactions and includes all supplemental rulings, requests for rulings, information and legal submissions and exhibits to the foregoing.
“ Canadian Tax-Free Status ” means the Canadian federal and provincial income tax position of the applicable parties relating to the Butterfly Transactions that would arise on the assumptions that (i) each of the rulings and opinions provided in the Canadian Tax Ruling applied to determine such income tax position of the applicable parties and (ii) the requisite conditions for such rulings and opinions as set out in the Canadian Tax Ruling were satisfied.
“ Code ” has the meaning set forth in the recitals.
“ Contribution ” has the meaning set forth in the recitals.
“ CRA ” means the Canada Revenue Agency.
“ Distribution ” has the meaning set forth in the recitals.
“ Distribution Date ” has the meaning set forth in the recitals.
“ Employee Restricted Stock ” means either ADP Restricted Stock or Broadridge Restricted Stock.
“ Employee Stock Option ” means either an ADP Stock Option or a Broadridge Stock Option.
“ Final Determination ” means the final resolution of liability for any Tax for any taxable period by or as a result of (i) a final and unappealable decision, judgment, decree or other order by any court of competent jurisdiction; (ii) a final settlement with the IRS, a closing agreement or accepted offer in compromise under Code Sections 7121 or 7122, or a comparable arrangement under the laws of another jurisdiction; (iii) any allowance of a Refund in respect of an overpayment of Tax, but only after the expiration of all periods during which such amount may be recovered by the Taxing Authority imposing the Tax; or (iv) any other final disposition, including by reason of the expiration of the applicable statute of limitations.
“ Gain Recognition Agreement ” means any agreement to recognize gain that is described in Treasury Regulation Section 1.367(a)-8 and entered into in connection with the Transactions and to which any member of the ADP Group or the Broadridge Group is a party.
“ 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 New York Stock Exchange, Inc.
“ Group ” means the ADP Group and/or the Broadridge Group, as the context requires.
“ Income Taxes ” means all federal, state, local, and foreign income or franchise Taxes or other Taxes based on income or net worth.
“ Indemnifying Party ” has the meaning set forth in Section 5.01.
“ Indemnitee ” has the meaning set forth in Section 5.01.
“ IRS ” means the U.S. Internal Revenue Service.
“ Joint Return ” means any Return that includes both a member of the ADP Group and a member of the Broadridge Group.
“ 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.
“ Option ” means an option to acquire common stock, or other equity-based incentives the economic value of which is designed to mirror that of an option, including non-qualified stock options, discounted non-qualified stock options, cliff options to the extent stock is issued or issuable (as opposed to cash compensation), and tandem stock options to the extent stock is issued or issuable (as opposed to cash compensation).
“ Other Taxes ” means all Taxes other than Income Taxes, including (but not limited to) transfer, sales, use, payroll, property, and unemployment Taxes.
“ Past Practices ” has the meaning set forth in Section 3.03(a).
“ 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.
“ Post-Distribution Tax Period ” means any taxable period (or portion thereof) beginning after the Distribution Date.
“ Pre-Distribution Tax Period ” means any taxable period (or portion thereof) ending on or before the close of the Distribution Date.
“ Proposed Acquisition Transaction ” has the meaning set forth in Section 4.02(b)(i).
“ Refund ” means any cash refund of Taxes or reduction of Taxes by means of credit, deduction, offset or otherwise.
“ Reportable Transaction ” means a reportable or listed transaction as defined in Section 6011 of the Code or the Treasury Regulations promulgated thereunder.
“ Restricted Period ” means the period beginning on the date of this Agreement and ending on, and including, the last day of the two-year period following the Distribution Date.
“ Restricted Stock ” means either ADP Restricted Stock or Broadridge Restricted Stock.
“ Ruling ” means all private letter rulings granted by the IRS, the CRA or any other taxing authority relating to the Transactions (whether granted prior to, on or after the date hereof), requests for such rulings, including all supplemental ruling requests and information submissions, and any exhibit to any of the foregoing.
“ Satisfactory Guidance ” means either a ruling from the IRS (or the CRA in respect of Section 4.04) or an Unqualified Tax Opinion, at the election of Broadridge, in either case reasonably satisfactory to ADP in both form and substance, including with respect to any underlying assumptions or representations. Satisfactory Guidance shall not include an Unqualified Tax Opinion with respect to which ADP’s counsel, of recognized national standing, provides an opinion to ADP that the conclusions in such Unqualified Tax Opinion are not free from doubt. For the avoidance of doubt, this definition is intended to allow ADP to prevent Broadridge from taking the action that is the subject of a ruling from the IRS or an Unqualified Tax Opinion, if ADP determines in good faith that there is any Tax risk to it from such action based upon either (1) any uncertainty concerning any underlying assumptions or representations in such ruling or opinion or (2) any legal uncertainty referred to in advice it receives from its counsel.
“ Separate Return ” means (i) in the case of the Broadridge Group, a Tax Return of any member of that Group (including any consolidated, combined, affiliated or unitary Return) that does not include, for all or any portion of the relevant taxable period, any member of the ADP Group and (ii) in the case of the ADP Group, a Tax Return of any member of that Group (including any consolidated, combined, affiliated or unitary Return) that does not include, for all or any portion of the relevant taxable period, any member of the Broadridge Group.
“ Separation and Distribution Agreement ” means the Separation and Distribution Agreement, as amended from time to time, by and between ADP and Broadridge (or its predecessor-in-interest) dated as of March 20, 2007.
“ Straddle Period ” means any taxable period beginning on or before the Distribution Date and ending after the Distribution Date.
“ Tax Advisor ” means a U.S. Tax counsel or other Tax advisor of recognized national standing reasonably acceptable to both Parties.
“ Tax Attribute ” means a net operating loss, net capital loss, investment credit, foreign Tax credit, excess charitable contribution, general business credit or any other item of loss, deduction or credit that could reduce a Tax liability.
“ Tax Contest ” means an audit, review, examination or any other administrative or judicial proceeding with the purpose or effect of determining or redetermining Taxes (including any administrative or judicial review of any Adjustment Request).
“ Tax Dispute ” means any dispute arising in connection with this Agreement.
“ Tax-Free Status ” means the qualification of the Contribution and Distribution taken together as a transaction, (i) that is a “reorganization” described in Code Sections 355(a) and 368(a)(1)(D), (ii) in which the Broadridge stock distributed is “qualified property” for purposes of Code Sections 355(c) and 361(c), (iii) in which no gain or loss will be recognized by ADP upon the receipt of the Broadridge Cash from Broadridge, (iv) in which ADP, Broadridge and the shareholders of ADP recognize no income or gain for U.S. federal Income Tax purposes pursuant to Code Sections 355, 361 and 1032 and (v) that qualifies for tax-free treatment under comparable provisions of state, local and foreign law. For the avoidance of doubt, recognition of income or gain that relates to items described in Sections 2.03(c)(i)(A) or 2.04 or to intercompany items shall not cause the Distribution to fail to achieve Tax-Free Status.
“ Tax Item ” means any item of income, gain, loss, deduction, credit, recapture of credit, or any other item (including the basis or adjusted basis of property) which increases or decreases Income Taxes paid or payable in any taxable period.
“ Tax Opinions/Rulings ” means (i) any Ruling and (ii) the opinions of Tax Advisors relating to the Transactions including, without limitation, those issued either at the time of the Distribution or to allow a Party to take actions otherwise prohibited under this Agreement.
“ Tax Return ” or “ Return ” means any return, filing, report, questionnaire, information statement, claim for Refund, or other document required or permitted to be filed, including any amendments that may be filed, for any taxable period with any Taxing Authority.
“ Taxes ” means all forms of taxation or duties imposed, or required to be collected or withheld, including charges, together with any related interest, penalties or other additional amounts. For the avoidance of doubt, the term “Taxes” does not include amounts to be paid to any governmental authority pursuant to escheat law.
“ Taxing Authority ” means any governmental authority imposing Taxes.
“ Transaction Taxes ” means all (i) Taxes of any member of the ADP Group or the Broadridge Group resulting from, or arising in connection with, the failure of the Contribution and the Distribution to have Tax-Free Stat