Form 11-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 11-K
(Mark One)
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ANNUAL REPORT PURSUANT TO SECTION 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2008
OR
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TRANSITION REPORT PURSUANT TO SECTION 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For
the transition period from
to
Commission file number 001-14251
A. Full title of the plan and the address of the plan, if different from that of the issuer named
below:
SAP America, Inc. 401(k) Plan
SAP America, Inc.
3999 West Chester Pike
Newtown Square, PA 19073
B. Name of issuer of the securities held pursuant to the plan and the address of its principal
executive office:
SAP AG
Dietmar-Hopp-Allee 16
69190 Walldorf
Federal Republic of Germany
Exhibit Index appears on page II-2
SAP AMERICA, INC.
401(k) PLAN
Table of Contents
Note:
All other schedules required by the Department of Labor’s Rules and Regulations for
Reporting and Disclosure under the Employee Retirement Income
Security Act of 1974 (ERISA) have
been omitted because there is no information to report.
Report of Independent Registered Public Accounting Firm
The Plan Administrator
SAP America, Inc. 401(k) Plan:
We have audited the accompanying statements of net assets available for benefits of SAP America,
Inc. 401(k) Plan (the Plan) as of December 31, 2008 and 2007, and the related statements of changes
in net assets available for benefits for the years then ended. These
financial statements are the responsibility of the Plan’s management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material
respects, the net assets available for benefits of the Plan as of December 31, 2008 and 2007, and
the changes in net assets available for benefits for the years then
ended, in
conformity with U.S. generally accepted accounting principles.
Our audits were performed for the purpose of forming an opinion on the basic financial statements
taken as a whole. The supplemental schedule of Schedule H, Line 4i — Schedule of Assets (Held at End of Year)
as of December 31, 2008 is presented for the purpose of additional analysis and is not a required part
of the basic financial statements but is supplementary information required by the Department of
Labor’s Rules and Regulations for Reporting and Disclosure under the Employee Retirement Income
Security Act of 1974. The supplemental schedule is the responsibility of the Plan’s management. The
supplemental schedule has been subjected to the auditing procedures applied in the audits of the
basic financial statements and, in our opinion, is fairly stated in all material respects in
relation to the basic financial statements taken as a whole.
/s/
KPMG LLP
Pittsburgh,
Pennsylvania
June 26, 2009
1
SAP AMERICA, INC.
401(k) PLAN
Statements of Net Assets Available for Benefits
December 31, 2008 and 2007
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2008 |
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2007 |
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Assets: |
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Investments, at fair value |
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$ |
709,280,749 |
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$ |
817,271,271 |
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Participant loans |
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8,946,330 |
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6,910,922 |
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Receivables: |
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Employer contributions |
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539,166 |
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591,829 |
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Participant contributions |
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1,859,324 |
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2,112,840 |
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Total receivables |
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2,398,490 |
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2,704,669 |
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Net assets, reflecting investments at fair value |
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720,625,569 |
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826,886,862 |
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Adjustment
from fair value to contract value
for
fully benefit-responsive investment contracts |
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1,057,280 |
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(356,090 |
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Net assets available for benefits |
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$ |
721,682,849 |
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$ |
826,530,772 |
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See accompanying notes to financial statements.
2
SAP AMERICA, INC.
401(k) PLAN
Statements of Changes in Net Assets Available for Benefits
Years ended December 31, 2008 and 2007
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2008 |
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2007 |
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Additions: |
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Additions to net assets attributed to: |
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Investment income (loss): |
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Net depreciation in fair value of investments |
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$ |
(304,709,998 |
) |
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$ |
(6,312,105 |
) |
Interest and dividend income |
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26,305,575 |
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54,408,857 |
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Total investment income (loss) |
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(278,404,423 |
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48,096,752 |
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Contributions: |
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Employer |
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24,646,320 |
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23,177,307 |
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Participant |
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92,228,582 |
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83,208,518 |
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Rollovers |
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95,031,745 |
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14,472,999 |
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Total contributions |
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211,906,647 |
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120,858,824 |
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Total additions (reductions) |
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(66,497,776 |
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168,955,576 |
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Deductions: |
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Deductions from net assets attributed to: |
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Benefits paid to participants |
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38,174,557 |
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44,303,843 |
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Administrative expenses |
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175,590 |
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86,850 |
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Total deductions |
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38,350,147 |
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44,390,693 |
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Net increase (decrease) |
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(104,847,923 |
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124,564,883 |
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Net assets available for benefits: |
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Beginning of year |
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826,530,772 |
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701,965,889 |
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End of year |
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$ |
721,682,849 |
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$ |
826,530,772 |
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See accompanying notes to financial statements.
3
SAP AMERICA, INC.
401(k) PLAN
Notes to Financial Statements
The following description of SAP America, Inc. 401(k) Plan (the Plan) provides only general
information. Participants should refer to the Plan agreement for a complete description of the
Plan’s provisions.
The Plan is a defined contribution plan covering all employees of SAP America, Inc., SAP
International, Inc., SAP Labs LLC, SAP Public Services, Inc., SAP Global Marketing, Inc.,
SAP Government Support and Services, Inc., TomorrowNow, Inc., SAP Retail, Inc., SAP
Governance Risk & Compliance, Inc., OutlookSoft Corporation, Business Objects Americas,
and Visiprise, Inc. (collectively, the Company or the Companies). There are no minimum
age or service requirements for employees to become eligible to participate in the Plan.
The Plan is subject to the provisions of the Employee Retirement Income Security Act of
1974 (ERISA). The Plan is also subject to certain provisions of the Internal Revenue Code
of 1986 (the Code). The Companies are subsidiaries of SAP AG (the Parent Company or SAP).
Participants may contribute a portion of their eligible annual compensation, as defined
by the Plan, not to exceed $15,500 for 2008 and 2007. The Plan limits eligible
compensation to the amount prescribed by Section 401(a)(17) of the Code for purposes of
compensation reduction contributions and limits the amount of annual additions to the
amount prescribed by Section 415(c) of the Code. Participants direct the investment of
their contributions into various investment options offered by the Plan. The Plan
currently offers 21 mutual funds, the Parent Company’s ADR Stock Fund and two common
collective trusts as investment options for participants. The Company matches 50% of the
first 6% of eligible compensation that a participant contributes to the Plan. For
purposes of employer matching and employer discretionary contributions, the Company
limited the eligible compensation to $230,000 and $225,000 in 2008 and 2007,
respectively. Employees are permitted to make pre-tax and after-tax contributions of up
to 25% of compensation. Participants are permitted to make different contribution
elections for (a) compensation consisting of bonuses and commissions, and (b) all other
wages. The matching employer contribution is invested as directed by the participant.
Additional employer discretionary contributions may be contributed at the option of the
Company and are invested as directed by the participant. Employer discretionary
contributions were not made in 2008 or 2007. The employer discretionary contributions are
allocated to participants who, with respect to the plan year for which a contribution is
made, are employed by the Company on the last day of the plan year, have worked 1,000
hours in that year, and have elected a deferral contribution. The employer discretionary
contributions are allocated as an additional matching contribution.
The applicable dollar limits on pre-tax contributions allow individuals who have reached
age 50 by the end of the plan year, and who may no longer make pre-tax contributions
because of limitations imposed by the Code or the Plan, to make “catch-up contributions”
for that year. Eligible individuals
may make “catch-up contributions” up to the lesser of (a) the individual’s compensation
for the year less any other deferrals, or (b) $5,000 for 2008 and 2007.
Assets of $88,976,093 and $2,936,152 in 2008 and 2007, respectively, were transferred
into the Plan due to various acquisitions and are included in rollovers on the Statements
of Changes in Net Assets Available for Benefits.
(Continued)
4
All employer and employee contributions made to the Plan on behalf of a participant will
be credited to the account established in that participant’s name. As of each valuation
date, each participant’s account, after taking into account any contributions made on
behalf of that participant and allocated to their account, is credited with
earnings/losses attributable to the participant’s chosen investments. The benefit to which
a participant is entitled is the benefit that can be provided from the participant’s
vested account. All amounts credited to the participant’s account are invested as directed
by the participant. All dividends, capital gain distributions, and other earnings received
on investment options are specifically credited to a participant’s account and are
immediately used to invest in additional shares of those investment options.
Participants are vested immediately in their contributions plus actual earnings/losses
thereon. Vesting in the employer contribution to their accounts is based on years of
service as defined in the Plan. A participant is 50% vested after two years of service and
100% vested after three years of service.
Forfeitures are first applied to pay administrative expenses and then to offset required
employer contributions. For the years ended December 31, 2008 and 2007, forfeitures of
$2,288,841 and $13,313, respectively, were used to pay administrative expenses and to
offset required employer contributions. At December 31, 2008 and 2007, forfeited nonvested
accounts totaled $1,071,042 and $2,536,003, respectively.
Participants may borrow up to a maximum of $50,000 or 50% of their vested account balance,
whichever is less. The majority of the Plan’s outstanding loans are secured by the vested
balance in the participant’s account with original terms of up to 60 months; however, a
longer term may be permitted in accordance with the Plan document. The loans bear interest
at rates which are commensurate with local prevailing rates as determined quarterly by the
Plan Administrator. A maximum of two loans with outstanding balances is permitted at any
time by each participant.
Upon termination of employment, a participant may elect to receive a distribution equal to
the value of the participant’s vested interest in their account in the form of a lump-sum
amount, agreed upon installments, or a life annuity with or without a survivor option.
Employees (other than 5% owners) who attain the age of 701/2 years will not be required to
commence minimum distributions until they terminate employment. Employees who are 5%
owners must commence minimum distributions by April 1st of the calendar year after they
attain the age of 701/2 years. Employees may elect withdrawals during employment subject to
the terms described in the Plan document.
| (2) |
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Summary of Significant Accounting Policies |
The following are the significant accounting policies followed by the Plan:
The accompanying financial statements are prepared on the accrual basis of accounting.
The preparation of financial statements in conformity with U.S. generally accepted
accounting principles requires management to make estimates and assumptions that affect
the reported amounts
of assets and liabilities and changes therein, and disclosure of contingent assets and
liabilities. Actual results could differ from those estimates.
(Continued)
5
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(c) |
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Investment Valuation and Income Recognition |
The Plan’s investments are stated at fair value with the exception of the Vanguard
Retirement Savings Trust (VRST) and the Fidelity Advisor Stable Value Fund (FASV), which are common
collective trust funds that are fully invested in contracts deemed to be fully
benefit-responsive, and stated at contract value. The contract value is the relevant
measure to the Plan because it is the amount that is available for Plan benefits.
Accordingly, investments as reflected in the Statements of Net Assets Available for
Benefits state the VRST and the FASV at fair value, with a corresponding adjustment to reflect the investments at
contract value. Shares of registered investment companies and the SAP ADR Stock Fund are
valued at quoted market prices, which represent the net asset value of shares held by the
Plan at year-end.
Purchases and sales of securities are recorded on a trade-date basis. Dividends are
recorded on the ex-dividend date. Interest income is accrued when earned.
Participant loans are valued at cost, which approximates fair value.
Benefits are recorded when paid.
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(f) |
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Fully Benefit-Responsive Investment Contracts |
As
described in the Financial Accounting Standards Board (FASB) Staff Position AAG INV-1 and SOP 94-4-1, Reporting of Fully
Benefit-Responsive Investment Contracts Held by Certain Investment Companies Subject to
the AICPA Investment Company Guide and Defined-Contribution Health and Welfare and
Pension Plans (the FSP), investment contracts held by a defined contribution plan
are required to be reported at fair value. However, contract value is the relevant
measurement, as contract value is the amount participants will receive if they were to
initiate permitted transactions under the terms of the Plan. As required by the FSP, the
Statements of Net Assets Available for Benefits presents the investment contracts at fair
value with the adjustment from fair value to contract value. The Statements of Changes
in Net Assets Available for Benefits are prepared on a contract value basis.
The
investment in the VRST and the FASV includes fully benefit-responsive investments stated at fair value.
Contract value is equal to principal balance plus accrued interest. There are no
reserves against contract value for credit risk of the contract issuer or otherwise. The
average yield and crediting interest rates for the VRST were 3.67%
and 3.38%,
respectively, for 2008 and 4.71% and 4.44%, respectively, for 2007. The average yield and
crediting interest rates for the FASV were 2.83% and 3.42%, respectively, for 2008. The
crediting interest rate is based on a formula agreed upon with the
issuer. Certain events limit the ability of the Plan to transact at
contract value with the issuer. Such events
include the following: (i) amendments to the plan documents (including complete or
partial plan termination or merger with another plan); (ii) changes to plan’s prohibition
on competing investment options or deletion of equity wash provisions; (iii) bankruptcy
of the plan sponsor or other plan sponsor events (e.g., divestitures or spin-offs of a
subsidiary) which cause a significant withdrawal from the plan, or (iv) the failure of the
trust to qualify for exemption from federal income taxes or any required prohibited
transaction exemption under ERISA. The Plan Administrator does not believe that any such
event that would limit the Plan’s ability to transact at contract value with participants is
probable of occurring.
(Continued)
6
| (3) |
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Fair Value Measurements |
The Plan adopted FASB Statement of Financial Accounting
Standards No. 157 Fair Value Measurements (SFAS 157), effective January 1, 2008. SFAS 157
defines fair value as the price that would be received to sell an asset, or paid to transfer a
liability, in an orderly transaction between market participants at the measurement date and
establishes a framework for measuring fair value. It establishes a three-level hierarchy for
fair value measurements based upon the transparency of inputs to the valuation of an asset or
liability as of the measurement date.
Valuation Hierarchy
A financial instrument’s categorization within the valuation hierarchy is based upon the
lowest level of input that is significant to the fair value measurement. The three levels of
the fair value hierarchy under SFAS 157 are described as follows:
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Level 1
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Inputs to the valuation methodology are quoted prices (unadjusted) for identical
assets or liabilities in active markets. Level 1 assets and liabilities include
Registered Investment Companies (Mutual Funds) and common
stocks. |
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Level 2
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Observable inputs other than Level 1 prices, for example, quoted prices for
similar assets and liabilities in active market, quoted prices for identical or similar
assets or liabilities in markets that are not active, and inputs that are observable or
can be corroborated, either directly or indirectly, for substantially the full term of
the financial instrument. Level 2 assets and liabilities include items that are traded
less frequently than exchange traded securities and whose model inputs are observable in
the market or can be corroborated by market observable data. Examples in this category
are common collective trust funds. |
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Level 3
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Inputs to the valuation methodology are unobservable and significant to the fair
value measurement. These unobservable inputs reflect the Plan’s own assumptions about the
market that participants would use to price an asset based on the best information
available in the circumstances. |
Valuation Methodologies
Following is a description of the valuation methodologies used for instruments measured at
fair value.
Registered Investment Companies: Mutual funds are valued at the net asset value (NAV)
on a market exchange. Each fund’s NAV is calculated as of the close of business of the New
York Stock Exchange (NYSE) and National Association of Securities Dealers Automated Quotations
(NASDAQ).
SAP
ADR Stock Fund: The stock fund includes the Company’s common stock and is valued at the closing price reported in the active market in
which the individual securities are traded.
Common Collective Trust Funds: There are no readily available market quotations for a fund.
The fund’s fair value is based on securities in the portfolio which typically is the amount
which the fund might reasonably expect to receive for the security upon a current sale. These
funds are either valued on a daily or monthly basis.
The preceding methods described may produce a fair value calculation that may not be
indicative of net realizable value or reflective of future fair values. Furthermore, although
the Plan believes its valuation methods are appropriate and consistent with other market
participants, the use of different methodologies and assumptions to determine the fair value
of certain financial instruments could result in a different fair value measurement at the
reporting date.
(Continued)
7
The following table summarizes by level within the fair value hierarchy the Plan’s
investment assets at fair value as of December 31, 2008. As required by SFAS 157, assets are
classified in their entirety based on the lowest level of input that is significant to the
fair value measurement.
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Fair Value Measurements Using Input Levels: |
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Level 1 |
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Level 2 |
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Level 3 |
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Total |
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Mutual Funds |
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$ |
622,660,722 |
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$ |
— |
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$ |
— |
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$ |
622,660,722 |
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SAP ADR
Stock Fund |
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— |
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9,575,939 |
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— |
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9,575,939 |
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Common Collective Trust Funds |
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— |
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77,044,088 |
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— |
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77,044,088 |
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Total investments measured at fair value |
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$ |
622,660,722 |
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$ |
86,620,027 |
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$ |
— |
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$ |
709,280,749 |
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The Plan has $77,044,088 of investments in alternative investment funds which are reported at
fair value and has concluded that the net asset value reported by the underlying fund
approximates the fair value of the investment. These investments are redeemable at net asset
value under agreements with the underlying funds. However, it is possible that these
redemption rights may be restricted or eliminated by the funds in the future in accordance
with the underlying fund agreements. Due to the nature of the investments held by the funds,
changes in market conditions and the economic environment may significantly impact the net
asset value of the funds and, consequently, the fair value of the Plan’s interest in the
funds. Furthermore, changes to the liquidity provisions of the funds may significantly impact
the fair value of the Plan’s interest in the funds.
The following presents investments that represent 5% or more of the Plan’s net assets:
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December 31 |
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2008 |
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2007 |
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Vanguard Wellington Fund |
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$ |
209,176,533 |
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$ |
178,337,255 |
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Vanguard Retirement Savings Trust |
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75,697,267 |
|
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|
47,834,771 |
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Vanguard 500 Index Fund |
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70,983,403 |
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103,897,838 |
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Vanguard Total Bond Market Index Fund |
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56,136,660 |
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— |
* |
Vanguard Windsor II Fund |
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51,146,576 |
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81,580,173 |
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Vanguard International Growth Fund |
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43,596,664 |
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70,442,521 |
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Vanguard Global Equity Fund |
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— |
* |
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67,088,397 |
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Vanguard Strategic Equity Fund |
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— |
* |
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63,333,841 |
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Vanguard Explorer Fund |
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— |
* |
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47,983,365 |
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* Balance does not exceed 5% or more of the Plan’s net assets. |
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During 2008 and 2007, the Plan’s investments, including gains and losses on investments bought
and sold, as well as held during the year, depreciated in fair value as follows:
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2008 |
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2007 |
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Mutual Funds |
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$ |
(301,197,767 |
) |
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$ |
(6,103,635 |
) |
SAP ADR Stock Fund |
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(3,512,231 |
) |
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(208,470 |
) |
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$ |
(304,709,998 |
) |
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$ |
(6,312,105 |
) |
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(Continued)
8
| (5) |
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Related-Party Transactions |
Certain Plan investments are shares of mutual funds or a common collective trust fund managed
by an affiliate of Vanguard Fiduciary Trust Company. Vanguard Fiduciary Trust Company is the
Trustee as defined by the Plan (Plan Trustee) and, therefore, these transactions qualify as
party-in-interest transactions. All fees for the investment management services are paid by
the Company. The Company may be reimbursed for reasonable Plan expenses paid by the Company on
behalf of the Plan, provided the Company advises the Plan Trustee of the liability owed to the
Company. Additionally, participants can invest in the Parent Company’s ADR Stock Fund. The
Parent Company is a related party.
Although it has not expressed any intent to do so, the Company has the right under the Plan to
discontinue its contributions at any time and to amend, modify, or terminate the Plan subject
to the provisions of ERISA. In the event of Plan termination, participants would become 100%
vested in their employer contributions.
On June 23, 2008, the Internal Revenue Service issued a favorable determination letter to the
Company indicating that the Plan, as amended and restated as of January 1, 1997, remains in
compliance with the applicable provisions of the Code and the regulations thereunder. The Plan
has been amended since January 1, 1997; however, the Plan Administrator and the Plan’s counsel
believe that the Plan, both in form and in operation, remains in compliance with applicable
provisions of the Code and the regulations thereunder.
| (8) |
|
Risks and Uncertainties |
The Plan invests in various investment securities. Investment securities are exposed to
various risks such as interest rate, market, and credit risks. Due to the level of risk
associated with certain investment securities, it is at least reasonably possible that changes
in the values of investment securities will occur in the near term and that such changes could
materially affect participants’ account balances and the amounts reported in the Statements of
Net Assets Available for Benefits.
Effective January 1, 2009, the Company changed its matching percentage from 50% to 75% of the
first 6% of eligible compensation that a participant contributes to the Plan. The Company
has also elected to provide additional employer contributions for certain employees who are
participants of the Company’s pension plan. The additional contribution percentage ranges
from 1% to 3% of eligible compensation based on the employee’s age and years of service as of
December 31, 2008. The contributions are subject to annual IRS compensation and contribution
limits.
9
Schedule 1
SAP AMERICA, INC.
401(k) PLAN
Schedule H, Line 4i — Schedule of Assets (Held at End of Year)
December 31, 2008
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| Identity of issue, borrower, lessor, or |
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| similar party |
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Description of investment and loans |
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Current value |
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(*) Vanguard Funds: |
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Wellington |
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Registered Investment Company |
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$ |
209,176,533 |
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500 Index |
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Registered Investment Company |
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70,983,403 |
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Total Bond Market Index |
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Registered Investment Company |
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56,136,660 |
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Windsor II |
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Registered Investment Company |
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51,146,576 |
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International Growth |
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Registered Investment Company |
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43,596,664 |
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Global Equity |
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Registered Investment Company |
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35,994,307 |
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Strategic Equity |
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Registered Investment Company |
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34,685,243 |
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Explorer |
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Registered Investment Company |
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28,031,937 |
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Target Retirement 2030 |
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Registered Investment Company |
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15,024,682 |
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Target Retirement 2035 |
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Registered Investment Company |
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13,718,598 |
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U.S. Growth |
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Registered Investment Company |
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13,090,786 |
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Target Retirement 2025 |
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Registered Investment Company |
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12,211,415 |
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Morgan Growth |
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Registered Investment Company |
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10,680,565 |
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Target Retirement 2020 |
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Registered Investment Company |
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8,639,187 |
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Target Retirement 2015 |
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Registered Investment Company |
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6,005,186 |
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Target Retirement 2040 |
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Registered Investment Company |
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5,123,194 |
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Target Retirement 2010 |
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Registered Investment Company |
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3,249,114 |
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Target Retirement Income |
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Registered Investment Company |
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2,087,759 |
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Target Retirement 2045 |
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Registered Investment Company |
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1,790,923 |
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Target Retirement 2050 |
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Registered Investment Company |
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819,102 |
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Target Retirement 2005 |
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Registered Investment Company |
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468,888 |
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(*) (**) Vanguard Retirement Savings Trust |
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Common Collective Trust |
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75,697,267 |
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(**) Fidelity Advisor Stable Value Fund |
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Common Collective Trust |
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1,346,821 |
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(*) SAP ADR Stock Fund |
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American Depository Receipts |
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9,575,939 |
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(*) Participant loans |
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Participant loans bearing interest at rates ranging from 5% to 10.5% due through the year 2019. |
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8,946,330 |
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$ |
718,227,079 |
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| (*) |
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Denotes party-in-interest. |
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| (**) |
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Represents the fair value.
The contract value as of December 31, 2008 was $76,717,611 for
the Vanguard Retirement Savings Trust and $1,383,757 for the Fidelity Advisor Stable Value Fund. |
See accompanying Report of Independent Registered Public Accounting Firm.
10
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Plan
Administrator has duly caused this Annual Report to be signed on the SAP America, Inc. 401(k)
Plan’s behalf by the undersigned hereunto duly authorized.
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SAP America, Inc. 401(k) Plan
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| By: |
/s/ Pat Pettinati
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Pat Pettinati |
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Plan Administrator |
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Date: June 26, 2009
II-1
Exhibit Index
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| Exhibit No. |
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Description |
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| 23.1 |
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Consent of Independent Registered Public Accounting Firm |
II-2