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EXHIBIT 10.1
POOLING AGREEMENT
between
1. Mr. Xxxxxxx Xxxx,
See Exhibit A for address.
2. Xx. Xxxxxx Xxxx,
See Exhibit A for address.
3. The Xxxxxxx Xxxx Stiftung, a limited liability company,
represented by its Managing Director, Xxxxxxx Xxxx, who is empowered to
act alone, and who is freed from the limitations contained in Section
181 of the German Civil Code,
See Exhibit A for Address.
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4. Professor Dr. h.c. Xxxxx Xxxxxxxx,
See Exhibit A for address.
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5. Xx. x.x. Xxxxx Xxxxxxx,
See Exhibit A for address.
6. The Xxxxx Xxxxxxx Stiftung, a non-profit limited liability company,
represented by its Managing Director Xx. x.x. Xxxxx Xxxxxxx, who is
empowered to act alone, and who is freed from the limitations contained
in Section 181 of the German Civil Code.
See Exhibit A for address.
PREAMBLE
1. The parties to the agreement are the principal stockholders of SAP
Aktiengesellschaft Systeme, Anwendungen, Produkte in der
Datenverarbeitung (hereinafter "SAP") which is entered into the
Commercial Register of the District Court of Heidelberg under HRB No.
269-WIE.
2. On January 12, 1989, the parties listed above as numbers 1, 2, 4 and 5
as well as Xx. Xxxx-Xxxxxx Xxxxxx of Weinheim and Xx. Xxxxxx Xxxx of
Walldorf had entered into a Pooling Agreement in which the related
voting rights were agreed. This agreement was amended on December 17,
1992 and June 13, 1995, and later replaced by a Pooling Agreement dated
January 9, 1996 in which in addition to the parties listed above as
numbers 3 and 6, Udo and Xxxxxx Xxxxxxx of Heidelberg, the Xxxxxxx
Trust of Jersey, Channel Islands, and the H.W. and X. Xxxxxx Foundation
of Weinheim were parties (the "1996 Pooling Agreement"). The 1996
Pooling Agreement was terminated with respect to the Xxxxxxx Trust and
the H.W. and X. Xxxxxx Foundation. The parties to this Pooling
Agreement as well as Xx. Xxxxxx Xxxx, Xx. Xxx Xxxxxxx and Xx. Xxxxxx
Xxxxxxx terminated the 1996 Pooling Agreement effective November 29,
1996.
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In view of this background, the parties intend to enter into a new
pooling arrangement. Through the following arrangements, they would
like to form a pool whose purpose is to ensure the exercise of the
parties' influence during the term of this Agreement, through a uniform
expression of will and a uniform exercise of voting rights in the
annual shareholders' meeting of SAP, and to ensure the uniform exercise
of the rights and obligations of the parties to SAP.
To this effect, the parties agree as follows:
SECTION 1
POOLED SHARES
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1. The Pooling Shareholders hereby pool the following number of ordinary
shares of SAP as well as any voting rights resulting therefrom, without
forming assets of a company:
NUMBER OF TOTAL AMOUNT OF PORTION OF THE
SHARES WITH A SHARES VOTING SHARES OF
NOMINAL VALUE THE CAPITAL OF
OF DM 5 SAP
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Mr. Xxxxxxx Xxxx 1,920,500 9,602,500
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Xx. Xxxxxx Xxxx 602,000 3,010,000
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Xxxxxxx Xxxx Stiftung GmbH 9,339,100 46,695,500
--------- ----------
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Subtotal for the Xxxx Family 11,861,600 59,308,000 19.448%
and Xxxx Stiftung
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Professor Xx. x.x. Xxxxx 9,682,500 48,412,500 15.875%
Xxxxxxxx
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Xx. x.x. Xxxxx Xxxxxxx 1,904,400 9,522,000
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Xxxxx Xxxxxxx Stiftung 7,051,600 35,258,000
gGmbH
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Subtotal for Xx. Xxxxxxx and 8,956,000 44,780,000 14.684%
the Tschira Stiftung
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Total 30,500,100 152,500,500 50.007%
========== =========== =======
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For purposes of simplifying this chart, a nominal value of DM 5 has
been used although shares with a nominal value of DM 50 are also
included. In this case, each share with a nominal value of DM 50 is
counted as ten shares with a nominal value of DM 5.
2. Also pooled are all rights which are related to the shares referred to
in paragraph 1, such as options, the exercises of the options from such
ordinary shares and from any capital increase.
3. The shares referred to in paragraphs 1 and 2 are hereafter referred to
as the "Pooled Shares".
4. In view of the existence of shares which are not pooled under this
Agreement, no restrictions whatsoever shall apply. Section 4 shall
remain unaffected.
SECTION 2
POOLING OF VOTES
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In order to ensure uniform voting by the parties when the shareholders' meeting
of SAP adopts resolutions, the parties agree on the following voting
restrictions with respect to the Pooled Shares:
1. Immediately following the invitation to a shareholders' meeting of SAP,
the parties shall convene for a meeting (the "Meeting") in which the
parties shall decide how they will exercise their right to bring
motions and to vote Pooled Shares in a uniform manner with respect to
the individual items on the agenda of the shareholders' meeting.
The Meeting shall be called in writing, with an agenda attached, by
party number 1, or if such party is unable to do so or if the Meeting
is not called in a timely manner, then by party number 4 or party
number 5. In the letter calling the Meeting, the items of the agenda
must be explained in such detail so that in the event a party elects to
appoint a representative, such party is in a position to instruct such
representative how to vote.
The Meeting shall be chaired by party number 1, failing that, by party
number 4, unless the Meeting, by a simply majority of the votes cast,
appoints another chairperson.
2. At the Meeting, only the Pooled Shares are entitled to vote. A quorum
is present at the Meeting if parties are present or represented that
together hold at least 75% of the Pooled Shares. Each party may chose
to be represented at the Meeting by another party on the basis of a
written proxy. If no quorum is present at the Meeting, a new Meeting
shall be called by giving one week notice, but such Meeting shall in
any event take place no later than the day prior to the shareholders'
meeting of SAP, and such Meeting shall convene at the place of the
general shareholders' meeting or in Walldorf. At such Meeting, no
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quorum shall be necessary with respect to those items that were listed
on the agenda for the previous Meeting at which no quorum was present,
irrespective of what percentage of the Pooled Shares are present; this
shall be specifically pointed out in the invitation thereto.
3. The chairman shall have minutes of each meeting prepared and shall send
a copy of such minutes to all other parties.
4. The parties also may adopt decisions without calling a Meeting, in
writing, by telex or telefax, if all parties agree to this method of
adopting resolutions or participate therein.
Paragraph 3 shall apply mutatis mutandis.
5. Decisions of the parties concerning the uniform exercise of voting
rights with respect to the Pooled Shares require such majority as are
necessary according to law or SAP's by- laws for the relevant
resolutions of the shareholders set forth on the agenda of the relevant
shareholders' meeting. In the event that according to SAP's by-laws or
to law a majority higher than a simple majority is required and such
higher majority is not reached on the first vote, a second vote shall
be taken. On such second vote, the decision shall be made by simple
majority. The above is subject to the understanding that the parties,
irrespective of the nominal value of their respective Pooled Shares
held by them, each DM 5, have one vote. If and to the extent a party is
excluded from voting in the shareholders' meeting, such party shall be
excluded from voting in a Meeting as well.
6. The parties undertake to either vote their shares at the shareholders'
meeting themselves or cause the shares to be voted by proxy. They also
undertake to vote their respective Pooled Shares at the shareholders'
meeting of SAP in each case in accordance with the corresponding
decision made at the Meeting, irrespective of how a party has voted at
such Meeting. If the necessary majority to vote for a "yes" at the
meeting is not reached, each party is obligated to vote "no" in the
shareholders' meeting of SAP. If the parties have not voted with
respect to an item on the agenda of the shareholders' meeting of SAP,
each party is free to vote its shares at the shareholders' meeting of
SAP at its discretion.
7. With respect to resolutions of the general shareholders' meeting of SAP
concerning the general approval of the activity of the Supervisory
Board and the Executive Board in the previous business year
(Entlastung) as well as the other cases referred to in Section 136,
Paragraph 1, Sentence 1 of the German Stock Corporation Act, the
parties are free to vote at their discretion, notwithstanding a
possible exclusion from voting pursuant to the provisions of German
Stock Corporation Act.
8. Before a general shareholders' meeting is convened at which a vote on
the appointment of members of the Supervisory Board will take place,
the parties shall call a Meeting with respect to this issue and make a
decision in accordance with the preceding rules.
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SECTION 3
SALE OF POOLED SHARES, RIGHT OF FIRST REFUSAL, OFFERING OBLIGATION, ETC.
________________________________________________________________________
1. Parties number 1, 2 and 3 (hereinafter the "Subpool Xxxx") and parties
number 5 and 6 (hereinafter the "Subpool Tschira") are permitted to
transfer their Pooled Shares to members of their own subpool or members
of the other subpool without the prior approval of the parties. Other
parties to the Agreement must be given notice of any such transfer
within 14 days of such transfer.
2. All other sales, transfers or other disposal or encumbrances of the
Pooled Shares by the parties to any third party are only permitted when
the relevant party has no other shares of SAP (ordinary shares of
non-voting preference shares) which are not bound by this Pooling
Agreement to sell. The same applies to a loan of shares if the borrower
may exercise the voting rights of the loaned Pooled Shares.
3. In the event a party to the Agreement desires to sell its Pooled Shares
to a third party, the remaining parties to the Agreement have a right
of first refusal in proportion to their Pooled Shares. This right of
first refusal also applies to a trade; in this case, the value of the
trade replaces the purchase price. This right of first refusal may only
be exercised by each party to the Agreement in relation to the total of
its Pooled Shares to the traded or sold shares.
The selling party must notify the other parties to the Agreement
without delay of such potential sale in writing by registered mail with
return receipt, and such writing must contain the name of the potential
purchaser as well as the contents of any agreements entered into with
such third party. The right of first refusal must be exercised within 4
weeks of the receipt of the certified letter; thereafter, it expires.
To the extent a party to the Agreement does not exercise its right of
first refusal, such right transfers to the remaining parties to the
Agreement. For any transferred right of first refusal, the notice
period is extended an additional 4 weeks from the receipt of the notice
by the selling party that one of the parties to the Agreement will not
exercise its right of first refusal or has remained silent during the
notice period. The other parties to the Agreement may only exercise
their entire respective portion of the transferred right of first
refusal. If a right of refusal is not exercised within the last
mentioned notice period, no further transfer of the right of first
refusal will occur. For this specific sale, the parties to the
Agreement have no further rights of first refusal.
4. The parties agree that they will only sell their Pooled Shares with a
view to maintain the price level at which the shares of SAP are traded
on the stock exchange unless this would be a hardship on the selling
party.
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5. Through the sale, transfer or other disposal of the Pooled Shares to a
third party pursuant to the stipulations of Section 3, paragraphs 2 and
3, the effected Pooled Shares will be removed from the obligations of
this Pooling Agreement. To the extent the parties to the Agreement
exercise their right of first refusal, the purchased Pooled Shares
remain part of the pool under this Agreement.
6. Disposition of the Pooled Shares which are not purchased by those with
a right of first refusal pursuant to Section 3, paragraph 3, may only
be concluded after the expiration of the notice period in Section 3,
paragraph 3.
7. The preceding provisions apply mutatis mutandis to the sale or trade
related to the Pooled Shares of subscription rights for new shares,
securities granting a conditional or unconditional right to subscribe
for new shares, subscription rights resulting from the purchase of such
securities, as well as securities issued pursuant to a capital increase
by the company using its own means. In the event of the sale of
subscription rights, the selling party must notify the remaining
parties to the Agreement about such sale or trade in writing by
registered mail with return receipt two weeks after the adoption of the
relevant shareholders' resolution to increase the capital. The notice
period for the exercise of rights of first refusal or the acceptance of
the officer is two weeks from the receipt of the registered notice.
SECTION 4
INFORMATION OBLIGATIONS WITH RESPECT TO NON-POOLED ORDINARY SHARES
__________________________________________________________________
In the event the non-pooled ordinary shares of one of the parties of to this
agreement are transferred or encumbered within the meaning of Section 3,
paragraph 2, hereof, such party will inform the other parties within 14 days to
the extent this effects shares with a value of at least 2% of the ordinary
shares forming SAP's share capital or if due to multiple transfers or
encumbrances it reaches such percentage within a period of 6 months.
SECTION 5
REVOCATION OF ALL PRIOR AGREEMENTS
__________________________________
1. If and to the extent the ordinary or preferred shares of SAP may have
been the subject to further oral or written agreements, contracts,
business relationships or other commitments in any form, between all or
one of the parties, in addition to the terminated 1996 Pooling
Agreement, such arrangements are hereby terminated.
2. The parties hereby agree that no party to this Agreement has any rights
of any kind, known or unknown, with respect to any other party
resulting from or together with the
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termination of earlier agreements pursuant to Section 5, paragraph 1,
hereof, which exists or could be exercised.
3. The individual parties are permitted to enter into agreements
containing additional restrictions to those contemplated under this
Agreement with respect to the Pooled Shares with other parties to this
Agreement and/or third parties to the extent permitted hereunder.
Restrictions or obligations which bind other parties to the Agreement
who have not explicitly agreed to such agreements or obligations in
writing cannot be created thereunder.
4. The individual parties are further permitted to agree with other
parties to this Agreement and/or third parties, that any prior oral
agreements concerning the Pooled Shares shall be remain in effect.
SECTION 6
LEGAL SUCCESSORS
________________
Upon the death of a natural person who is a member of the pool, this Pooling
Agreement will apply to the heirs of the deceased or to such person, who
receives the Pooled Shares through a distribution of the estate of the deceased
or as a gift from the deceased. In the event of a gift from the deceased, the
heirs, to the extent that is permitted, must condition the transfer the Pooled
Shares to such individual dependant upon such individual entering into this
Agreement. The parties agree that any testamentary gift should be structured in
a way that the heirs are able to make the transfer of the Pooled Shares
dependent upon the recipient of the gift becoming a member of the pool. In this
event, the other pool members have the right to terminate the recipient joining
the pool; this right must be exercised within four weeks.
SECTION 7
TERM OF THE POOLING AGREEMENT
_____________________________
1. This Pooling Agreement may be terminated by giving 12 months prior
notice to the end of a calendar year. The first available date on which
it may be terminated is December 31, 1999.
2. The termination must be in writing and must be sent to the other
parties by registered mail with return receipt. Each party to the
Agreement has the right to join such termination within 9 months prior
to the expiration of the termination period; sentence 1 applies mutatis
mutandis.
3. Upon expiration of the termination period, the terminating party will
no longer be a party to the Pooling Agreement to the extent that it has
terminated the Agreement with respect
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to all of its Pooled Shares. The Pooling Agreement will remain in force
with respect to the remaining parties. If the termination is only with
respect to a portion of a party's Pooled Shares, such party shall
remain a member of the Pooling Agreement with respect to those Pooled
Shares remaining in the pool.
4. If a party sells a total of over more than 50% of its Pooled Shares or
if a party terminates this Agreement with respect to over 50% of its
Pooled Shares, the remaining parties have the right by unanimous
agreement to terminate this party's membership in the pool for cause.
5. The resolution of any disputes between the pool and one of the parties
to the Agreement or between two parties to the Agreement concerning the
Agreement, also concerning legal effectiveness of the Agreement or any
portion thereof, shall be exclusively resolved by arbitration,
excluding jurisdiction of regular courts; the competence, composition
and procedures for such arbitration have been set forth by the parties
in a separate document.
Each new party joining the Pooling Agreement, whether receipt of the
Pooled Shares resulted from a legal transfer during life or upon death,
agrees to the arbitration set forth in the notarized document. This new
party is obligated to sign and enter formally into the arbitration
agreement.
SECTION 8
MISCELLANEOUS
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1. Professor Xx. x.x. Xxxxxxxx has requested an exemption from the
obligations set forth in Section 6, so with respect to Xxxxxxx 0,
Xxxxxxxxx Xx. x. x. Xxxxxxxx is not bound. He may, however, elect to be
bound by the obligations set forth in Section 6 by notifying the other
parties in writing thereof. In addition, the parties agree to discuss
amending Section 6, if necessary.
2. This Pooling Agreement contains all of the agreements between the
parties concerning the Pooled Shares. There are no additional oral or
written side agreements. Section 5, paragraph 3 and Section 4 remain
unaffected.
3. Any changes to this Agreement must be made in writing. This also
applies to any changes to this paragraph.
4. In the event that any of the provisions of this Agreement are held
invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity or enforceability of the other portions hereof. The
parties are obligated to replace any invalid provision with a valid
provision which comes as close to the same economic effect as the
invalid provision. The same applies in the event that there are any
omissions to the Agreement.
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5. The registration requirements of the German Securities Trading Act must
be followed.
Walldorf, November 30, 1996
To the extent that this Agreement is signed on behalf of any party by a
representative who also represents other parties to the Agreement, such
representative is freed from the limitations of Section 181 of the German Civil
Code.
______________________________
Xxxxxxx Xxxx
______________________________
Xxxxxx Xxxx, represented by Mr. Xxxxxxx Xxxx as evidenced by a notarized
power-of-attorney dated January 12, 1996
______________________________
Xxxxxxx Xxxx Stiftung GmbH, represented by its Managing Director, Mr. Xxxxxxx
Xxxx, who is authorized to act solely
______________________________
Professor Dr. h.c. Xxxxx Xxxxxxxx
______________________________
Xx. x.x. Xxxxx Xxxxxxx
______________________________
Xxxxx Xxxxxxx Stiftung gGmbH, represented by its Managing Director Xx. x.x.
Xxxxx Xxxxxxx, who is authorized to act solely
The foregoing is a true and accurate English translation. June 22, 1998
/s/ Prof. Dr. Xxxxxxx Xxxxxxxxx
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Name: Prof. Dr. Xxxxxxx Xxxxxxxxx
Title: Member of the Executive Board
/s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Principal Financial Officer
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