Exhibit 10.1

SEPARATION AND DISTRIBUTION AGREEMENT

by and between

NCR CORPORATION

and

TERADATA CORPORATION

 

Dated as of August 27, 2007

 

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TABLE OF CONTENTS

 

ARTICLE I            DEFINITIONS				1
1.1		Action		1
1.2		Affiliate		1
1.3		Agent		2
1.4		Agreement		2
1.5		Ancillary Agreements		2
1.6		Arbitration Act		2
1.7		Assets		2
1.8		ATMs		3
1.9		Code		3
1.10		Commercial Agreements		3
1.11		Commission		3
1.12		Consents		4
1.13		Delayed Transfer Assets		4
1.14		Delayed Transfer Liabilities		4
1.15		Disclosure Documents		4
1.16		Distribution		4
1.17		Distribution Date		4
1.18		Effective Time		4
1.19		Employee Benefits Agreement		4
1.20		Environmental Law		4
1.21		Environmental Liabilities		5
1.22		Exchange Act		5
1.23		Excluded Assets		5
1.24		Excluded Liabilities		5
1.25		Governmental Approvals		5
1.26		Governmental Authority		5
1.27		Group		5
1.28		Information		5
1.29		Information Statement		5
1.30		Insurance Policies		5
1.31		Insurance Proceeds		5
1.32		Intellectual Property Agreements		6
1.33		Interim Services and Systems Replication Agreement		6
1.34		JAMS		6
1.35		Liabilities		6
1.36		NYSE		6
1.37		Non-Teradata Assets		6
1.38		Non-U.S. Plan		7
1.39		NCR Common Stock		7
1.40		NCR Group		7
1.41		NCR Self-Services Business		7

 

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1.42		Other Discontinued Operations		7
1.43		Person		7
1.44		Prime Rate		7
1.45		Real Property Documents		7
1.46		Record Date		7
1.47		Securities Act		7
1.48		Security Interest		8
1.49		Separation		8
1.50		Shared Liabilities		8
1.51		Shared NCR Percentage		8
1.52		Shared Teradata Percentage		8
1.53		Subsidiary		8
1.54		Tax Sharing Agreement		8
1.55		Taxes		8
1.56		Teradata Assets		8
1.57		Teradata Balance Sheet		8
1.58		Teradata Business		9
1.59		Teradata Common Stock		9
1.60		Teradata Contracts		9
1.61		Teradata Excluded Contracts		10
1.62		Teradata Excluded Real Property		10
1.63		Teradata Group		10
1.64		Teradata Leased Real Property		10
1.65		Teradata Liabilities		10
1.66		Teradata Owned Real Property		10
ARTICLE II            THE SEPARATION				10
2.1		Transfer of Assets and Assumption of Liabilities		10
2.2		Teradata Assets		11
2.3		Teradata Liabilities		14
2.4		Termination of Agreements		15
2.5		Documents Relating to Transfer of Real Property Interests and Tangible Property Located Thereon		16
2.6		Documents Relating to Other Transfers of Assets and Assumption of Liabilities		17
2.7		Other Ancillary Agreements		18
2.8		The Non-U.S. Plan		18
2.9		Disclaimer of Representations and Warranties		18
2.10		Governmental Approvals and Consents		18
2.11		Novation of Assumed Teradata Liabilities		19
2.12		Novation of Assumed Liabilities other than Teradata Liabilities		20
ARTICLE III            ACTIONS PENDING THE DISTRIBUTION				21
3.1		Transactions Prior to the Distribution		21
3.2		Conditions Precedent to Consummation of the Distribution		21

 

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ARTICLE IV            THE DISTRIBUTION				22
4.1		The Distribution		22
4.2		Actions Prior to the Distribution		23
4.3		Sole Discretion of NCR		23
ARTICLE V            MUTUAL RELEASES; INDEMNIFICATION				24
5.1		Release of Pre-Closing Claims		24
5.2		Indemnification by Teradata		25
5.3		Indemnification by NCR		26
5.4		Indemnification Obligations Net of Insurance Proceeds and Other Amounts		26
5.5		Procedures for Indemnification of Third Party Claims		27
5.6		Additional Matters		28
5.7		Remedies Cumulative		29
5.8		Survival of Indemnities		29
5.9		Limitation on Liability		29
ARTICLE VI            INSURANCE AND CERTAIN OTHER MATTERS				29
6.1		Insurance Matters		29
6.2		Certain Business Matters		31
6.3		Late Payments		31
ARTICLE VII            EXCHANGE OF INFORMATION; CONFIDENTIALITY				31
7.1		Agreement for Exchange of Information; Archives		31
7.2		Ownership of Information		32
7.3		Compensation for Providing Information		32
7.4		Record Retention		32
7.5		Limitation of Liability		32
7.6		Other Agreements Providing for Exchange of Information		33
7.7		Production of Witnesses; Records; Cooperation		33
7.8		Confidentiality		34
7.9		Protective Arrangements		34
ARTICLE VIII            ARBITRATION; DISPUTE RESOLUTION				35
8.1		Agreement to Arbitrate		35
8.2		Escalation		35
8.3		Demand for Arbitration		36
8.4		Arbitrators		37
8.5		Hearings		37
8.6		Discovery and Certain Other Matters		38
8.7		Certain Additional Matters		39
8.8		Limited Court Actions		39
8.9		Continuity of Service and Performance		40
8.10		Law Governing Arbitration Procedures		40
8.11		Applicability to High-Level Disputes		41

 

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ARTICLE XI            FURTHER ASSURANCES AND ADDITIONAL COVENANTS				41
9.1		Further Assurances		41
ARTICLE X            TERMINATION				42
10.1		Termination by Mutual Consent		42
10.2		Other Termination		42
10.3		Effect of Termination		42
ARTICLE XI            MISCELLANEOUS				42
11.1		Counterparts; Entire Agreement; Corporate Power		42
11.2		Governing Law		43
11.3		Assignability		43
11.4		Third Party Beneficiaries		43
11.5		Notices		44
11.6		Severability		44
11.7		Force Majeure		44
11.8		Expenses		45
11.9		Headings		45
11.10		Survival of Covenants		45
11.11		Waivers of Default		45
11.12		Specific Performance		45
11.13		Amendments		45
11.14		Interpretation		46

 

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SEPARATION AND DISTRIBUTION AGREEMENT

THIS SEPARATION AND DISTRIBUTION AGREEMENT, dated as of August 27, 2007, is by and between NCR Corporation, a Maryland corporation (“NCR”), and Teradata Corporation, a Delaware corporation (“Teradata”). Capitalized terms used herein shall have the respective meanings assigned to them in Article I hereof.

WHEREAS, the Board of Directors of NCR has determined that it is in the best interests of NCR and its shareholders to separate NCR’s existing businesses into two independent businesses;

WHEREAS, in furtherance of the foregoing, it is appropriate and desirable to transfer the Teradata Assets to Teradata and its Subsidiaries and to cause Teradata and its Subsidiaries to assume the Teradata Liabilities, all as more fully described in this Agreement and the Ancillary Agreements;

WHEREAS, the Board of Directors of NCR has further determined that it is appropriate and desirable, on the terms and conditions contemplated hereby, for NCR to distribute to holders of shares of NCR Common Stock the outstanding shares of Teradata Common Stock owned directly or indirectly by NCR;

WHEREAS, the Distribution is intended to qualify as a tax-free spin-off under Section 355 of the Code;

WHEREAS, it is appropriate and desirable to set forth the principal corporate transactions required to effect the Separation, the Distribution and certain other agreements that will govern certain matters relating to the Separation, the Distribution and the relationship of NCR and Teradata and their respective Subsidiaries following the Distribution.

NOW, THEREFORE, the parties, intending to be legally bound, agree as follows:

ARTICLE I

DEFINITIONS

For the purpose of this Agreement the following terms shall have the following meanings:

1.1 Action means any demand, action, suit, countersuit, arbitration, inquiry, proceeding or investigation by or before any federal, state, local, foreign or international Governmental Authority or any arbitration or mediation tribunal.

1.2 Affiliate of any Person means a Person that controls, is controlled by, or is under common control with such Person. 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.

 

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1.3 Agent means the distribution agent to be appointed by NCR to distribute to the shareholders of NCR the shares of Teradata Common Stock held by NCR pursuant to the Distribution.

1.4 Agreement means this Separation and Distribution Agreement, including all of the Schedules hereto.

1.5 Ancillary Agreements means the Commercial Agreements, the Employee Benefits Agreement, the Intellectual Property Agreements, the Interim Services and Systems Replication Agreement, the Real Property Documents, the Tax Sharing Agreement, the agreements and other documents comprising the Non-U.S. Plan and the instruments, assignments and other documents and agreements executed in connection with the implementation of the transactions contemplated by this Agreement, including Article II hereof.

1.6 Arbitration Act means the United States Arbitration Act, 9 U.S.C. §§1-16, as the same may be amended from time to time.

1.7 Assets means assets, properties and rights (including goodwill), wherever located (including in the possession of vendors or other third parties or elsewhere), whether real, personal or mixed, tangible, intangible or contingent, in each case whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of any Person, including the following:

(a) all accounting and other books, records and files whether electronic, in paper, microfilm, microfiche, computer tape or disc, magnetic tape or any other form;

(b) all apparatus, computers and other electronic data processing equipment, fixtures, machinery, equipment, furniture, office equipment, automobiles, trucks, aircraft, rolling stock, vessels, motor vehicles and other transportation equipment, special and general tools, test devices, prototypes and models and other tangible personal property;

(c) all inventories of materials, parts, raw materials, supplies, work-in-process and finished goods and products;

(d) all interests in real property of whatever nature, including easements, whether as owner, mortgagee or holder of a Security Interest in real property, lessor, sublessor, lessee, sublessee or otherwise;

(e) all interests in any capital stock or other equity interests of any Subsidiary or any other Person, all bonds, notes, debentures or other securities issued by any Subsidiary or any other Person, all loans, advances or other extensions of credit or capital contributions to any Subsidiary or any other Person and all other investments in securities of any Person;

(f) all license agreements, leases of personal property, open purchase orders for raw materials, supplies, parts or services, unfilled orders for the manufacture and sale of products and other contracts, agreements or commitments;

 

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(g) all deposits, letters of credit and performance and surety bonds;

(h) all written technical information, data, specifications, research and development information, engineering drawings, operating and maintenance manuals, and materials and analyses prepared by consultants and other third parties;

(i) all domestic and foreign patents, copyrights, trade names, trademarks, service marks and registrations and applications for any of the foregoing, mask works, trade secrets, inventions, other proprietary information and licenses from third Persons granting the right to use any of the foregoing;

(j) all computer applications, programs and other software, including operating software, network software, firmware, middleware, design software, design tools, systems documentation and instructions;

(k) all cost information, sales and pricing data, customer prospect lists, supplier records, customer and supplier lists, customer and vendor data, correspondence and lists, product literature, artwork, design, development and manufacturing files, vendor and customer drawings, formulations and specifications, quality records and reports and other books, records, studies, surveys, reports, plans and documents;

(l) all prepaid expenses, trade accounts and other accounts and notes receivables;

(m) all rights under contracts or agreements, all claims or rights against any Person arising from the ownership of any Asset, all rights in connection with any bids or offers and all claims, choses in action or similar rights, whether accrued or contingent;

(n) all rights under insurance policies and all rights in the nature of insurance, indemnification or contribution;

(o) all licenses (including radio and similar licenses), permits, approvals and authorizations which have been issued by any Governmental Authority;

(p) cash or cash equivalents, bank accounts, lock boxes and other deposit arrangements; and

(q) interest rate, currency, commodity or other swap, collar, cap or other hedging or similar agreements or arrangements.

1.8 ATMs means automated teller machines.

1.9 Code means the Internal Revenue Code of 1986, as amended.

1.10 Commercial Agreements means the agreements listed on Schedule 1.10 hereto.

1.11 Commission means the Securities and Exchange Commission.

 

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1.12 Consents means any consents, waivers or approvals from, or notification requirements to, any third parties.

1.13 Delayed Transfer Assets means any Teradata Assets that are expressly provided in this Agreement or any Ancillary Agreement to be transferred after the date of this Agreement.

1.14 Delayed Transfer Liabilities means any Teradata Liabilities that are expressly provided in this Agreement or any Ancillary Agreement to be assumed after the date of this Agreement.

1.15 Disclosure Documents shall mean any registration statement (including any registration statement on Form 10) filed with the Commission by or on behalf of any party or any of its controlled Affiliates, and also includes any information statement, prospectus, offering memorandum, offering circular (including franchise offering circular or any similar disclosure statement) or similar disclosure document, whether or not filed with the Commission or any other Governmental Authority, which offers for sale or registers the transfer or distribution of any security of such party or any of its controlled Affiliates or which otherwise describes the Teradata Group or relates to the transactions contemplated hereby.

1.16 Distribution means the distribution by NCR on a pro rata basis to holders of NCR Common Stock of all of the outstanding shares of Teradata Common Stock owned by NCR on the Distribution Date as set forth in this Agreement.

1.17 Distribution Date means September 30, 2007, which will be the date on which the Distribution will occur.

1.18 Effective Time means 11:59 p.m., Eastern Standard Time or Eastern Daylight Time (whichever shall be then in effect), on the Distribution Date.

1.19 Employee Benefits Agreement means the Employee Benefits Agreement, to be executed and delivered on or prior to the Effective Time, by and between NCR and Teradata.

1.20 Environmental Law means any federal, state, local, foreign or international statute, ordinance, rule, regulation, code, license, permit, authorization, approval, consent, common law (including tort and environmental nuisance law), legal doctrine, order, judgment, decree, injunction, requirement or agreement with any Governmental Authority, now or hereafter in effect relating to health, safety, pollution or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or to emissions, discharges, releases or threatened releases of any substance currently or at any time hereafter listed, defined, designated or classified as hazardous, toxic, waste, radioactive or dangerous, or otherwise regulated, under any of the foregoing, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of any such substances, including the Comprehensive Environmental Response, Compensation and Liability Act, the Superfund Amendments and Reauthorization Act and the Resource Conservation and Recovery Act and comparable provisions in state, local, foreign or international law.

 

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1.21 Environmental Liabilities means all Liabilities relating to, arising out of or resulting from any Environmental Law or contract or agreement relating to environmental, health or safety matters (including all removal, remediation or cleanup costs, investigatory costs, governmental response costs, natural resources damages, property damages, personal injury damages, costs of compliance with any settlement, judgment or other determination of Liability and indemnity, contribution or similar obligations) and all costs and expenses (including allocated costs of in-house counsel and other personnel), interest, fines, penalties or other monetary sanctions in connection therewith.

1.22 Exchange Act means the Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.

1.23 Excluded Assets has the meaning set forth in Section 2.2(b).

1.24 Excluded Liabilities has the meaning set forth in Section 2.3(b).

1.25 Governmental Approvals means any notices, reports or other filings to be made, or any consents, registrations, approvals, permits or authorizations to be obtained from, any Governmental Authority.

1.26 Governmental Authority shall mean any federal, state, local, foreign or international court, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority.

1.27 Group means either the NCR Group or the Teradata Group, as the context requires.

1.28 Information means information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, 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, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data.

1.29 Information Statement means each preliminary, final or supplemental information statement forming a part of the Information Statement on Form 10 relating to the Teradata Common Stock.

1.30 Insurance Policies means the insurance policies written by insurance carriers unaffiliated with NCR pursuant to which Teradata or one or more of its Subsidiaries (or their respective officers or directors) will be insured parties after the Effective Time including the Insurance Policies listed on Schedule 1.30 hereto.

1.31 Insurance Proceeds means those monies:

 

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(a) received by an insured (or its successor-in-interest) from an insurance carrier;

(b) paid by an insurance carrier on behalf of the insured (or its successor-in-interest); or

(c) received (including by way of set off) from any third party in the nature of insurance, contribution or indemnification in respect of any Liability;

in any such case net of any applicable premium adjustments (including reserves and retrospectively rated premium adjustments) and net of any costs or expenses (including allocated costs of in-house counsel and other personnel) incurred in the collection thereof.

1.32 Intellectual Property Agreements means the Trademark License Agreement, the Domain Name Assignment, the Patent Assignment, the Patent License Agreement, the Technology Agreement, the Third Party Licenses Agreement, the Trademark Assignment and the Exclusive Patent License, each to be executed and delivered on or prior to the Effective Time by and between NCR and Teradata.

1.33 Interim Services and Systems Replication Agreement means the Interim Services and Systems Replication Agreement, to be executed and delivered on or prior to the Effective Time, by and between NCR and Teradata.

1.34 JAMS means JAMS, located in New York, NY or in the event that JAMS is no longer in operation a comparable organization of national standing.

1.35 Liabilities means any and all losses, claims, charges, debts, demands, actions, causes of action, suits, damages, obligations, payments, costs and expenses, sums of money, accounts, reckonings, bonds, specialties, indemnities and similar obligations, exonerations, covenants, contracts, controversies, agreements, promises, doings, omissions, variances, guarantees, make whole agreements and similar obligations, and other liabilities, including all contractual obligations, whether absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever arising, and including those arising under any law, rule, regulation, Action, threatened or contemplated Action (including the costs and expenses of demands, assessments, judgments, settlements and compromises relating thereto and attorneys’ fees and any and all costs and expenses (including allocated costs of in-house counsel and other personnel), whatsoever reasonably incurred in investigating, preparing or defending against any such Actions or threatened or contemplated Actions), order or consent decree of any Governmental Authority or any award of any arbitrator or mediator of any kind, and those arising under any contract, commitment or undertaking, including those arising under this Agreement or any Ancillary Agreement, in each case, whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of any Person.

1.36 NYSE means The New York Stock Exchange, Inc.

1.37 Non-Teradata Assets means any Assets of NCR or any of its Affiliates (including any member of the Teradata Group) other than Teradata Assets.

 

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1.38 Non-U.S. Plan means the Non-U.S. Plan, comprised of the series of transactions, agreements and other arrangements, pursuant to which the non-U.S. Assets and Liabilities of NCR and its Affiliates have been or will be assigned between NCR and Teradata and their respective Subsidiaries, which are set forth in Schedule 1.38 hereto and in the separate binders identified by the parties.

1.39 NCR Common Stock means the Common Stock, $.01 par value per share, of NCR.

1.40 NCR Group means NCR and each Person (other than any member of the Teradata Group) that is an Affiliate of NCR immediately after the Effective Time.

1.41 NCR Self-Services Business means: (a) the business and operations of NCR other than the Teradata Business consisting principally of the business of self-service technologies (including ATMS, retail self-checkout systems, automated bill payment systems, and airline, hotel and hospital self check-in kiosks), retail store automation and customer support services, business consumables and check processing and imaging solutions; (b) except as otherwise expressly provided herein, any terminated, divested or discontinued businesses or operations that at the time of termination, divestiture or discontinuation primarily related to the NCR Self-Services Business as then conducted; and (c) the terminated, divested, discontinued or other businesses and operations listed or described on Schedule 1.41.

1.42 Other Discontinued Operations means any terminated, divested or discontinued businesses and operations of NCR or Teradata or of any former or current Affiliate of NCR or Teradata (whether such business or operations were terminated, divested or discontinued prior to, at the time or after such Person was, became or ceased to be an Affiliate of NCR or Teradata) that are not listed or described in the definitions of NCR Self-Services Business or Teradata Business or the respective Schedules thereto.

1.43 Person means an individual, general or limited partnership, corporation, trust, joint venture, unincorporated organization, limited liability entity, any other entity and any Governmental Authority.

1.44 Prime Rate means the rate which JP Morgan Chase (or any successor thereto or other major money center commercial bank agreed to by the parties hereto) announces from time to time as its prime lending rate, as in effect from time to time.

1.45 Real Property Documents means the deeds, lease assignments and assumptions, leases, subleases and sub-subleases, and the supplemental and other agreements and instruments related thereto necessary to effect the Separation to be executed by and between Teradata and NCR prior to or as of the Effective Time.

1.46 Record Date means the close of business on September 14, 2007, the date determined by the NCR Board of Directors as the record date for determining shareholders of NCR entitled to receive shares of Teradata Common Stock in the Distribution.

1.47 Securities Act means the Securities Act of 1933, as amended, together with the rules and regulations promulgated thereunder.

 

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1.48 Security Interest means any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-way, covenant, condition, easement, encroachment, restriction on transfer, or other encumbrance of any nature whatsoever.

1.49 Separation means the transfer of the Teradata Assets to Teradata and its Subsidiaries and the assumption by Teradata and its Subsidiaries of the Teradata Liabilities, all as more fully described in this Agreement and the Ancillary Agreements.

1.50 Shared Liabilities means any and all Liabilities relating to, arising out of or resulting from any of the matters listed or described on Schedule 1.50.

1.51 Shared NCR Percentage means, with respect to any Shared Liability, the percentage indicated on the Schedule defining Shared Liabilities as allocated to NCR for such Shared Liability.

1.52 Shared Teradata Percentage means, with respect to any Shared Liability, the percentage indicated on the Schedule defining Shared Liabilities as allocated to Teradata for such Shared Liability.

1.53 Subsidiary of any Person means any corporation or other organization whether incorporated or unincorporated of which at least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided , however that no Person that is not directly or indirectly wholly owned by any other Person shall be a Subsidiary of such other Person unless such other Person controls, or has the right, power or ability to control, that Person.

1.54 Tax Sharing Agreement means the Tax Sharing Agreement, to be executed and delivered on or prior to the Effective Time, by and between NCR and Teradata.

1.55 Taxes has the meaning set forth in the Tax Sharing Agreement.

1.56 Teradata Assets has the meaning set forth in Section 2.2

1.57 Teradata Balance Sheet means the unaudited consolidated balance sheet of Teradata, dated as of June 30, 2007 included in the Information Statement. As promptly as practicable after the Effective Time, the parties shall seek to substitute an unaudited consolidated balance sheet of Teradata, dated as of September 30, 2007, as the Teradata Balance Sheet. The parties agree to use their commercially reasonable efforts to cooperate in the preparation of such unaudited consolidated balance sheet of Teradata, dated as of September 30, 2007, but if either or both of such parties fail to do so or if the parties fail for any reason whatsoever to agree on such an updated balance sheet, the term Teradata Balance Sheet shall continue to refer to the unaudited consolidated balance sheet of Teradata, dated as of June 30, 2007, included in the Information Statement.

 

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1.58 Teradata Business means: (a) the business and operations of NCR and its Subsidiaries relating to the enterprise analytics and data warehousing business; (b) except as otherwise expressly provided herein, any terminated, divested or discontinued businesses or operations that at the time of termination, divestiture or discontinuation primarily related to the Teradata Business as then conducted, and (c) any terminated, divested, discontinued or other businesses or operations listed on Schedule 1.58.

1.59 Teradata Common Stock means the Common Stock, $.01 par value per share, of Teradata.