As filed with the Securities and Exchange Commission on December 19, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AUTOMATIC DATA PROCESSING, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-1467904
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
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ONE ADP BOULEVARD
ROSELAND, NEW JERSEY 07068
(973) 974-5000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
AUTOMATIC DATA PROCESSING, INC. RETIREMENT AND SAVINGS PLAN
(Full title of the plan)
JAMES B. BENSON, ESQ.
CORPORATE VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
AUTOMATIC DATA PROCESSING, INC.
ONE ADP BOULEVARD
ROSELAND, NEW JERSEY 07068
(Name and address of agent for service)
(973) 974-5000
(Telephone number, including area code, of agent for service)
COPY TO:
RICHARD S. BORISOFF, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Amount of
to be Registered Registered Price Per Share(1) Aggregate Offering Price(1) Registration Fee
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Common stock, par value $0.10
per share (2) ............. 3,000,000 shares $58.23 $174,690,000 $41,751 (3)
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(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(c) and 457(h) under the Securities Act of
1933, as amended (the "Securities Act"). The Proposed Maximum Offering
Price was determined by averaging the high and low prices of the common
stock, par value $.10 per share ("Common Stock"), of Automatic Data
Processing, Inc. (the "Company") as reported on the New York Stock
Exchange Composite Transaction Tape on December 14, 2001.
(2) Pursuant to Rule 416(c) under the Securities Act, this registration
statement also covers an indeterminate amount of plan interests to be
offered or sold pursuant to the Automatic Data Processing, Inc.
Retirement and Savings Plan (the "Plan").
(3) Pursuant to Rule 457(h)(2) under the Securities Act, no separate fee is
required to register interests in the Plans.
EXPLANATORY NOTE
The 3,000,000 shares of Common Stock being registered pursuant
to this Registration Statement are additional securities of the same class as
other securities for which a registration statement (No. 33-56463) on Form S-8
was filed with the Securities and Exchange Commission (the "Commission") on
November 14, 1994. Pursuant to General Instruction E to Form S-8, the contents
of such earlier registration statement are incorporated by reference into this
Registration Statement, except that the provisions contained in Part II of such
earlier registration statement are modified as set forth in this Registration
Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I
of Form S-8 are not required to be filed with the Commission either as part of
this registration statement or as prospectuses or prospectus supplements
pursuant to the Note to Part I of Form S-8 and Rule 424 under the Securities
Act. The information required in the Section 10 (a) prospectus is included in
documents being maintained and delivered by the Company as required by Part I of
Form S-8 and by Rule 428 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 2001.
2. The Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 2001.
3. The Company's definitive Proxy Statement for the
Annual Meeting of Stockholders held on November 13, 2001.
4. The description of the Company's Common Stock
contained in its registration statement on Form 8-A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as filed with the
Commission on January 21, 1992, including any amendment or report filed for the
purpose of amending such description.
5. The Plan's Annual Report on Form 11-K for the period
ended December 31, 2000, as filed by the Company with the Commission on behalf
of the Plan.
In addition, all reports and documents filed by the Company or
by or on behalf of the Plan pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and made a part hereof from the
date of the filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock being registered
pursuant hereto has been passed upon by James B. Benson, Esq., Corporate Vice
President, Secretary and General Counsel of the Company. Mr. Benson, a full-time
employee of the Company, beneficially owns 165,641 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Provision for indemnification of directors and officers is
made in Section 145 of the Delaware General Corporation Law.
Article Fifth, Sections 3 and 4 of the Company's Amended and
Restated Certificate of Incorporation provide as follows:
"The Corporation shall indemnify all directors and officers of
the Corporation to the full extent permitted by the General Corporation Law of
the State of Delaware (and in particular Paragraph 145 thereof), as from time to
time amended, and may purchase and maintain insurance on behalf of such
directors and officers. In addition, the Corporation shall, in the manner and to
the extent as the Bylaws of the Corporation shall provide, indemnify to the full
extent permitted by the General Corporation Law of the State of Delaware (and in
particular Paragraph 145 thereof), as from time to time amended, such other
persons as the By-laws shall provide, and may purchase and maintain insurance on
behalf of such other persons."
"A director of the Corporation shall not be held personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; except for liability (i) for breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. Any repeal or modification of this
paragraph by the stockholders of the Corporation shall not adversely affect any
right or protection of any director of the Corporation existing at the time of,
or for or with respect to any acts or omissions occurring prior to, such repeal
or modification."
Finally, Article 6, Section 6.01 of the Company's By-Laws
provides as follows:
"Nature of Indemnity: The Corporation shall indemnify any
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, by reason of the fact that he or she
is or was or has agreed to become a director or officer of the Corporation, or
is or was serving or has agreed to serve at the request of the Corporation as a
director or officer, of another corporation, partnership, joint venture, trust
or other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, and may indemnify any person who was or is a party or
is threatened to be made a party to such an action, suit or proceeding by reason
of the fact that he or she is or was or has agreed to become an employee or
agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her or on his or her behalf in
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connection with such action, suit or proceeding and any appeal therefrom, if he
or she (x) acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation and, in the case
of any such employee or agent, in a manner he or she reasonably believed to be
not in violation of any policies or directives of the Corporation, and (y) with
respect to any criminal action or proceeding had no reasonable cause to believe
his or her conduct was unlawful; except that in the case of an action or suit by
or in the right of the Corporation to procure a judgment in its favor (i) such
indemnification shall be limited to expenses (including attorneys' fees)
actually and reasonably incurred by such person in the defense or settlement of
such action or suit, and (ii) no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper. The indemnification under this Section 6.01
shall apply to all directors and officers of the Corporation who sit on the
boards of directors of non-profit corporations in keeping with the Corporation's
philosophy."
"The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful."
As permitted by Section 145 of the General Corporation Law of
the State of Delaware and the Company's Certificate and By-Laws, the Company
also maintains a directors and officers liability insurance policy which
insures, subject to certain exclusions, deductibles and maximum amounts,
directors and officers of the Company against damages, judgments, settlements
and costs incurred by reason of certain acts committed by such persons in their
capacities as directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
A list of exhibits included as part of this registration
statement is set forth in the Exhibit Index which immediately precedes such
exhibits and is incorporated by reference herein.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement (i) to
include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to
such information in this registration statement; (ii) that, for the purpose of
determining any liability under the Securities Act, each
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such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; and
(iii) to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act, as amended,
each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended, that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act, as amended, may be permitted to directors, officers
and controlling persons of the registrant pursuant to the registrant's
Certificate of Incorporation or by-laws, by contract, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement, or amendment thereto, to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Roseland, State of New Jersey on
December 19, 2001.
AUTOMATIC DATA PROCESSING, INC.
(Registrant)
By: /s/ Arthur F. Weinbach
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Arthur F. Weinbach
Chairman and
Chief Executive Officer
POWER OF ATTORNEY
The officers and directors of Automatic Data Processing, Inc.
whose signatures appear below hereby constitute and appoint Arthur F. Weinbach
and James B. Benson, and each of them (with full power to each of them to act
alone), their true and lawful attorneys-in-fact, with full powers of
substitution and resubstitution, to sign and execute on behalf of the
undersigned any and all amendments, including post-effective amendments, to this
Registration Statement, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
and each of the undersigned does hereby ratify and confirm all that said
attorneys-in-fact shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below on December 19, 2001 by the
following persons in the capacities indicated.
SIGNATURE TITLE
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/s/ Arthur F. Weinbach Chairman, Chief Executive Officer and
- ----------------------------- Director
Arthur F. Weinbach (Principal Executive Officer)
/s/ Karen E. Dykstra Vice President, Finance (Principal Financial
- ----------------------------- Officer and Controller)
Karen E. Dykstra
Director
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Gregory D. Brenneman
/s/ Gary C. Butler Director
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Gary C. Butler
Director
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Joseph A. Califano, Jr.
/s/ Leon G. Cooperman Director
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Leon G. Cooperman
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/s/ George H. Heilmeier Director
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George H. Heilmeier
Director
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Ann Dibble Jordan
/s/ Harvey M. Krueger Director
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Harvey M. Krueger
/s/ Frederic V. Malek Director
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Frederic V. Malek
/s/ Henry Taub Director
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Henry Taub
Director
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Laurence A. Tisch
/s/ Josh S. Weston Director
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Josh S. Weston
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INDEX TO EXHIBITS
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EXHIBITS
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4.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 3.1 to Company's
Registration Statement on Form S-4 filed with the Commission
on February 9, 1999)
4.2 Amended and Restated By-laws of the Company (incorporated by
reference to Exhibit 3.2 to Company's Quarterly Report on Form
10-Q for the fiscal quarter ended December 31, 2000)
4.3 Form of the Company's common stock certificate (incorporated
by reference to Exhibit 4.4 to Registrant's Registration
Statement on Form S-3 filed with the Commission on January 21,
1992)
5.1* Opinion of James B. Benson, Esq. as to the legality of the
securities being registered hereby
23.1* Consent of James B. Benson, Esq. (included in Exhibit 5.1)
23.2* Consent of Deloitte & Touche LLP
24.1* Power of Attorney (included on signature page)
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* Filed herewith.