As of Dec. 31, 2001 including amendments of Dec. 20, 2001
POOLING AGREEMENT (the "AGREEMENT")
Between
1. ▇▇▇▇▇▇▇ ▇▇▇▇ Stiftung, a limited liability company, Walldorf ("PARTY
1"), represented by its managing director, ▇▇▇▇▇▇ ▇▇▇▇, who is
empowered to act alone, and who is exempt from the limitations
contained in Section 181 of the German Civil Code,
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2. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH & Co. Beteiligungs-KG, Walldorf ("PARTY 2"),
represented by its managing limited partner and authorized
representative Prof. Dr. h.c. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, who is exempt from the
limitation contained in Section 181 of the German Civil Code,
3. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Forderstiftung, a not-for-profit limited liability
company ("PARTY 3"), represented by its managing director, Prof. Dr.
h.c. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, who is empowered to act alone, and who is exempt
from the limitations contained in Section 181 of the German Civil Code,
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4. [Diploma Physicist ▇▇. ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ (until Dec. 20, 2001)] ▇▇.
▇.▇. ▇▇▇▇▇▇▇ Beteiligungs GmbH & Co. KG, Heidelberg ("PARTY 4"),
represented by its managing limited partner ▇▇. ▇.▇. ▇▇▇▇▇▇▇
Verwaltungs GmbH, which is represented by its managing director ▇▇.
▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, and
5. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Stiftung, a not-for-profit limited liability company,
Heidelberg ("PARTY 5"), represented by its managing director, ▇▇▇▇▇
▇▇▇▇▇▇▇, who is empowered to act alone, and who is exempt from the
limitations contained in Section 181 of the German Civil Code.
(each a "PARTY" and together the "PARTIES")
See Exhibit 1 for the Parties' addresses.
Preamble
1. The Parties to the Agreement are the principal shareholders of
Aktiengesellschaft Systeme, Anwendungen, Produkte in der
Datenverarbeitung ("SAP"), which is registered in the commercial
register of the District Court of Heidelberg under HRB No. 269-WIE.
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As of Dec. 31, 2001 including amendments of Dec. 20, 2001
2. The annual shareholders' meeting of SAP decided on its meeting on May 3,
2001, to convert the non-voting preference shares of SAP into ordinary
voting shares of SAP. This conversion will become effective upon the
registration of the respective decision of the annual shareholders'
meeting of SAP in the commercial register on June 18th, 2001.
In view of this background, the Parties intend to enter into the
Agreement. Based on the following provisions, the Parties intend to form
a pool the purpose of which is to (i) strengthen the Parties' influence
during the term of this Agreement, through uniform expression of their
▇▇▇▇▇ and uniform exercise of their voting rights in the annual
shareholders' meeting of SAP, and (ii) ensure that the Parties exercise
their rights and obligations to SAP uniformly. Through these measures a
minority voting block shall be guaranteed, which promotes the
independence of SAP. In particular, the Parties do not intend to carry
out any corporate activity in the pool; rather the pool shall only
perform those duties that are set out in the following provisions.
The Parties agree as follows:
SECTION 1
POOLED SHARES
1. The Parties hereby pool the following number of ordinary shares as well
as any voting right resulting therefrom. The formation of the pool does
not entail the respective shares becoming assets of the pool.
Number of no par value shares Proportion of the voting share
based on an assumed nominal value capital of SAP
of E 1
▇▇▇▇▇▇▇ ▇▇▇▇ Stiftung GmbH 28,017,300 8.902%
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH & Co 23,000,000 7.308%
Beteiligungs-KG
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - stiftung, 5,000,000 1.589%
not-for-profit GmbH ---------
Subtotal of ▇▇. ▇▇▇▇▇▇▇▇'▇ companies 28,000,000 8.897%
-----------------------------------------------------------------------------------------------------------
2
As of Dec. 31, 2001 including amendments of Dec. 20, 2001
----------------------------------------------------------------------------------------------
[Mr. ▇▇. ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ (until 6,845,200 2.175%
Dec. 20, 2001)]
▇▇. ▇.▇. ▇▇▇▇▇▇▇ Beteiligungs GmbH
& Co. KG
▇▇▇▇▇ ▇▇▇▇▇▇▇ Stiftung GmbH 21,154,800 6.722%
----------
Subtotal of ▇▇. ▇▇▇▇▇▇▇'▇ companies 28,000,000 8.897%
----------------------------------------------------------------------------------------------
Total 84,017,300 26.696%
==========
2. In addition, all rights resulting from or attached to the shares
referred to in paragraph 1 above, such as subscription rights, ordinary
shares resulting either from the exercise of such subscription rights
or from any capital increase, shall be deemed to be subject to this
Agreement.
3. The shares referred to in paragraph 1 and 2 above shall hereinafter be
referred to as the "POOLED SHARES".
4. Subject to the provisions set out in section 4, this Agreement shall
impose no restrictions whatsoever on shares that are not subject to the
Agreement.
SECTION 2
POOLING OF VOTES
To ensure that the Parties exercise their voting rights derived from the Pooled
Shares uniformly at the annual shareholders' meeting of SAP, the Parties agree
that the Pooled Shares shall be subject to the following voting restrictions:
1. Immediately following the invitation to the annual shareholders'
meeting of SAP, the Parties shall convene a meeting (the "MEETING") in
which the parties shall decide how they will exercise uniformly their
rights to bring motions and their rights to vote attached to the Pooled
Shares with respect to each item that is listed on the agenda of the
annual shareholders' meeting of SAP.
The meeting shall be called by means of an invitation letter (the
"INVITATION LETTER"), with an agenda attached, by Party 1, and failing
that or if the Meeting is not called in a timely manner, then by Party
2 or Party 4. The Invitation Letter shall specify the agenda in such
detail as is necessary for a Party to instruct its representative with
respect to the exercise of its voting rights.
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As of Dec. 31, 2001 including amendments of Dec. 20, 2001
The Meeting shall be chaired by Party 1 and failing that, by Party 2,
unless the Parties attending the Meeting appoint another chairperson by
a simple majority of the votes cast.
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 be
represented at the Meeting by another Party by written proxy. If no
quorum is present at the Meeting, a new Meeting (the "SECOND MEETING")
shall be called in the manner provided for in paragraph 1, subparagraph
2 above by giving one week notice. The Second Meeting shall in any
event take place at the latest on the day prior to the annual
shareholders' meeting of SAP and either at the place of the annual
shareholders' meeting of SAP or in Walldorf. At the Second Meeting, no
quorum shall be necessary with respect to those items, that were listed
an the agenda for the previous Meeting at which no quorum was present,
irrespective of what percentage of the Pooled Shares are present at the
Second Meeting; this shall be specifically pointed out in the
invitation to the Second Meeting.
3. The chairman of the Meeting and the Second Meeting, respectively, shall
provide that minutes of each Meeting and Second Meeting, respectively,
are prepared and shall send a copy of such minutes to all other
Parties.
4. The Parties may also adopt decisions without calling a Meeting, in
writing, by telex or telefax, provided that all parties (i) agree to
this method of adopting decisions or (ii) participate therein.
Paragraph 3 shall apply accordingly.
5. Decisions of the Parties concerning the uniform exercise of voting
rights with respect to the Pooled Shares (each a "POOL DECISION" and
together, the "POOL DECISIONS") require such majority as is necessary
according to applicable law or SAP's by-laws for the relevant
shareholders' meeting. If SAP's by-laws or applicable law require a
majority that exceeds a simple majority and such majority is not
reached on the first vote, a second vote shall take place. On such
second vote the Pool Decision shall be made by a simple majority. The
foregoing is subject to the understanding that the Parties have one
vote for each of the Pooled Shares. If and to the extent a Party is
excluded from voting in the annual shareholders' meeting of SAP, such
Party shall be excluded from voting with respect to a Pool Decision.
6. All parties agree to either exercise their voting rights at the annual
shareholders' meeting of SAP themselves or provide for their
representation. They further agree to exercise their voting rights with
respect to the Pooled Shares at the annual shareholders' meeting of SAP
in each case in accordance with the corresponding Pool Decision, and
irrespective of how a Party voted with respect to such Pool Decision.
If, with respect to a Pool Decision, the necessary majority to vote for
a "yes" is not reached, each Party is obliged to vote "no" in the
annual shareholders' meeting of SAP. If no Pool Decision has been taken
with respect to an item listed on the
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As of Dec. 31, 2001 including amendments of Dec. 20, 2001
agenda of the annual shareholders' meeting of SAP, each Party is free
to exercise its voting rights at the annual shareholders' meeting of
SAP at its discretion.
7. With respect to resolutions of the annual shareholders' meeting of SAP
concerning the general approval (Entlastung) of the activity of the
supervisory board and the executive board of SAP in the previous
business year as well as with respect to 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 an annual shareholders' meeting is convened at which the members
of the supervisory board will be appointed, the Parties shall call a
Meeting with respect to this issue and make a decision in accordance
with the provisions above.
SECTION 3
SALE OF POOLED SHARES, PRE-EMPTIVE RIGHTS, OFFERING OBLIGATION, ETC.
1. Party 2 and Party 3 (the "SUBPOOL ▇▇▇▇▇▇▇▇") and Party 4 and Party 5
(the "SUBPOOL TSCHIRA") are in each case permitted to transfer their
Pooled Shares to members of their own subpool without the prior
approval of the other Parties. The other Parties must, however, be
given notice of any such transfer within 14 days after such transfer
has taken place.
2. All other sales, transfers or other disposals or encumbrances of the
Pooled Shares by the Parties to any third party are only permitted if
the relevant Party has no shares of SAP at its disposal other than the
Pooled Shares, i.e. shares which are not bound by this Agreement. The
same applies to a loan of shares, if the borrower is entitled to
exercise the voting rights attached to the loaned Pooled Shares.
3. If a Party intends to sell its Pooled Shares to a third party, the
other Parties shall have a pre-emptive right in proportion to their
share of the entire amount of the Pooled Shares (the "PROPORTIONATE
SHARE"). This pre-emptive right also applies if the Pooled Shares are
exchanged; in this case, the value of the exchanged asset shall replace
the purchase price. Each Party may exercise the pre-emptive right
described in this paragraph only with respect to the entire amount of
its Proportionate Share.
The selling Party must notify the other Parties of the intended sale,
the name of the potential buyer and the contents of any agreements
entered into with such third party. The notification must be carried
out without delay and by registered mail with return receipt. The
pre-emptive right must be exercised within 4 weeks from the receipt of
the registered mail; thereafter, it expires.
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As of Dec. 31, 2001 including amendments of Dec. 20, 2001
To the extent a Party does not exercise its pre-emptive right, such
right shall accrue to the other Parties. Such accrued right must be
exercised within a notice period of 4 weeks from the receipt of the
selling Party's notice that one of the Parties will either not exercise
its pre-emptive right or has remained silent during such period. The
other Parties may only exercise their pre-emptive rights with respect
to their entire share of the accrued pre-emptive right. If an accrued
pre-emptive right is not exercised within the notice period of 4 weeks,
no further pro rata accrual of pre-emptive rights will occur. With
respect to this notified sale, the Parties have no further pre-emptive
rights.
4. The Parties agree that they will only sell their Pooled Shares at a
price that corresponds to the quotation of SAP's shares on the stock
exchange unless this restriction would cause an unreasonable hardship
for the Party intending to sell its shares.
5. Once the Pooled Shares are sold, transferred to a third party or
otherwise disposed of pursuant to section 3, paragraphs 2 and 3 above,
such Pooled Shares shall no longer be subject to the obligations of
this Agreement. To the extent the Parties exercise their pre-emptive
rights, such purchased Pooled Shares shall be subject to this
Agreement.
6. Pooled Shares, which are not purchased by the Parties that have
pre-emptive rights pursuant to section 3, paragraph 3 above, may only
be disposed of after the expiration of the notice period of section 3,
paragraph 3 above.
7. The foregoing provisions apply accordingly to the sale or exchange,
both related to the Pooled Shares, of subscription rights for new
shares, of securities granting a conditional or unconditional right to
subscribe for new shares, subscription rights resulting from the
purchase of such securities, as well as to the sale or exchange of
securities issued pursuant to an increase of authorized capital by the
company. If subscription rights are sold, the selling Party must notify
the other Parties of such sale or exchange by registered mail with
return receipt within two weeks from the adoption of the decision to
increase the capital. The exercise of pre-emptive rights and the
acceptance of the offer, respectively, must be notified within 2 weeks
from the receipt of the registered mail.
SECTION 4
INFORMATION OBLIGATIONS WITH RESPECT TO SHARES THAT
ARE NOT SUBJECT TO THIS AGREEMENT
If a Party disposes of or charges shares, that are not subject to this
Agreement, according to section 3, paragraph 2 above, such Party shall inform
the other Parties within 14 days from the date of such disposal or charge,
provided that such disposal or charge involves shares the value of which either
amounts to at least 2 per mille of SAP's share capital or
6
As of Dec. 31, 2001 including amendments of Dec. 20, 2001
will reach such percentage within a period of 6 months due to multiple disposals
or encumbrances.
SECTION 5
REVOCATION OF ALL PRIOR AGREEMENTS
1. The Pooling Agreement between the Parties dated November 30, 1996, as
well as the Supplements, dated October 12th, 1998, and December, 1998,
respectively ("OLD AGREEMENT"), shall hereby be cancelled by mutual
consent. Mr. ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇, which were both parties
to the Old Agreement, have terminated the Old Agreement vis-a-vis the
other parties with effect as of June 18th, 2001. The Parties hereby
waive explicitly compliance with the notice period to terminate the Old
Agreement according to section 7 paragraph 1 of the Old Agreement, as
well as the form of delivery of such notice and the possibility of a
subsequent termination according to section 7 paragraph 2 of the Old
Agreement.
2. The Parties hereby agree that no Party has or can exercise any rights
of any kind, known or unknown, with respect to any other Party
resulting from or in connection with the termination of previous
agreements pursuant to section 5, paragraph 1, above.
3. Each Party may enter into agreements containing additional restrictions
to those contemplated under this Agreement with respect to the Pooled
Shares with other Parties and/or third parties to the extent permitted
under this Agreement. Such agreements cannot restrict or bind other
Parties that have not explicitly agreed to such agreements or
obligations in writing.
4. In addition, each Party may agree with other Parties and/or third
parties, that any prior oral agreements concerning the Pooled Shares
shall remain effective.
SECTION 6
LEGAL SUCCESSOR
Upon the death of a moral person who is a member of the pool (the "DECEASED
PERSON"), this Agreement shall apply to the heirs of the Deceased Person, or to
the person who receives the Pooled Shares based on (i) a direction given by the
Deceased Person as to the partition of his estate, (ii) a distribution of the
Deceased Person's estate or (iii) a legacy of the Deceased Person. With respect
to a legacy, the Deceased Person's heirs must, to the extent permitted, make the
transfer of the Pooled Shares to the legatee contingent on such legatee entering
into this Agreement. The Parties agree that any testamentary legacy should be
drafted in such a way so as to permit the Deceased Person's heirs to make the
transfer of the Pooled Shares contingent on the legatee becoming a member of the
pool.
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As of Dec. 31, 2001 including amendments of Dec. 20, 2001
In such a case, the other Parties have the right to terminate the Agreement
vis-a-vis the legatee who is joining the pool; this right must be exercised
within four weeks from the date of joining the Agreement.
SECTION 7
TERM OF THE AGREEMENT
1. This Agreement may be terminated with a notice period of 6 months as of
June 30 or December 31 of any calendar year.
2. The termination notice must be in writing and must be sent to the other
Parties by registered mail with return receipt. Each Party may join
another Party (the "TERMINATING PARTY") with respect to such
Terminating Party's termination notice until 3 months prior to the
expiration of the notice period; paragraph 1 above applies accordingly.
3. Upon expiration of the termination period, the Terminating Party shall
no longer be a Party to the Agreement provided the Terminating Party
has terminated the Agreement with respect to all of its Pooled Shares.
The Agreement will remain in force with respect to the other Parties.
If the Terminating Party has terminated the Agreement only with respect
to a portion of its Pooled Shares, such Terminating Party shall remain
a member of the Agreement with respect to those Pooled Shares with
respect to which the Terminating Party has not terminated the
Agreement.
4. If a Party sells a total of more than 50% of its Pooled Shares or if a
Party terminates this Agreement with respect to more than 50% of its
Pooled Shares, the other Parties may by mutual agreement decide to
terminate such Party's membership in the pool for cause.
5. Any disputes between the pool and one of the Parties or between the
Parties concerning the Agreement - including disputes concerning the
legal effectiveness of the Agreement or any of its provisions - shall,
to the exclusion of the jurisdiction of the ordinary courts, be
resolved by an arbitration tribunal of which the Parties have
determined in a separate document (the "ARBITRATION AGREEMENT") the
jurisdiction, composition and the applicable procedural rules.
Each new party that enters into the Agreement - whether because of a
transfer of the Pooled Shares according to section 3 or according to
section 6 above - agrees to submit to the arbitration tribunal as set
out in the Arbitration Agreement. The new party will be obliged to
enter formally into the Arbitration Agreement by signing it.
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As of Dec. 31, 2001 including amendments of Dec. 20, 2001
SECTION 8
MISCELLANEOUS
1. Party 2 and Party 3 have made a proviso to the obligations set out in
section 6 above. Therefore, section 6 does not apply to Party 2 and
Party 3. Party 2 and Party 3 may, however, elect to be bound by the
obligations set out in section 6 by notifying the other Parties in
writing thereof. In addition, the Parties agree to discuss a redrafting
of section 6, if necessary.
2. This Agreement contains all of the agreements between the Parties
concerning the Pooled Shares. There are no additional oral or written
side agreements. Section 5, paragraphs 3 and 4 remain unaffected.
3. Any changes to this Agreement must be made in writing. This also
applies to any changes of this paragraph.
4. If any of the provisions of this Agreement are held to be invalid, such
invalidity shall not affect the validity of the other provisions of
this Agreement. The Parties are obliged to replace any invalid
provision with a valid provision, which comes as close to the economic
scope of the invalid provision as possible. The same applies if there
are any omissions in the Agreement.
5. The registration requirements of the German Securities Trading Act must
be followed.
Walldorf, June 18, 2001
If a representative, who also represents other Parties, signs this Agreement on
behalf of a Party, he is exempt from the limitations of Section 181 of the
German Civil Code.
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As of Dec. 31, 2001 including amendments of Dec. 20, 2001
----------------------
▇▇▇▇▇▇▇ ▇▇▇▇ Stiftung, limited liability company, represented by its managing
director ▇▇▇▇▇▇ ▇▇▇▇, who is empowered to act alone,
----------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH & Co. Beteiligungs-KG, represented by its managing limited
partner and authorized representative Prof. Dr. h.c. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Forderstiftung, not-for-profit limited liability company,
represented by its managing director Prof. Dr. h.c. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, who is
empowered to act alone,
---------------------
[▇▇. ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇]
---------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ Stiftung, not-for-profit limited liability company, represented by
its managing director, ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is empowered to act alone
10