Wengert GmbH - Wengert Gruppe

Wengert GmbH . Friedinger Strasse 2 . 78224 Singen 

Regional court Frankfurt am Main 

Court division handling commercial matters 

Wengert GmbH 

Rechtsanwaltsgesellschaft 

60256 Frankfurt am Main 

Rechtsberatung 

Persons responsible Certified Accountant Georg Wengert TELEFON +49 7731 9980.0 

Attorneys: Andreas Widmann TELEFAX +49 7731 9980.20 

Sascha Wengert Date 23.07.2003 

EMAIL g.wengert@wengert-ag.de 

Our reference 00204-03/wd/wd 

DEUTSCHLAND 

Postfach 501 . 78205 Singen 

Friedinger Strasse 2 . 78224 Singen 

fon +49.7731.99 80-0 

fax +49.7731.99 80-20 

e-mail info@wengert-gmbh.de 

www.wengert-gmbh.de 



GESCHÄFTSFÜHRER 

Sascha Wengert, Rechtsanwalt 

SITZ DER GESELLSCHAFT 

Singen 

REGISTERGERICHT 

Singen HRB 1740 

Legal Action 

of the M + M GmbH Vermögensverwaltungsgesellschaft, Oderstraße 35, 

78244 Gottmadingen, legally represented by the sole authorized representative 

general manager Ms. Anne-Marie Wengert ibidem 

Person with power of attorney: 

- plaintiff - 

Wengert GmbH Rechtsanwaltsgesellschaft, Friedinger Str. 2, 78224 Singen 

(Barristors and Solicitors) 

vs. 

Fraport AG Frankfurt Airport Services Worldwide, 

60547 Frankfurt am Main 

GESCHÄFTSKONTO 

Dresdner Bank AG Konstanz 

Konto 5 822 300 00 

BLZ 692 800 35 

RA-ANDERKONTO 

Dresdner Bank AG Konstanz 

Konto 5 822 300 01 

BLZ 692 800 35 

IM VERBUND MIT 

Wengert AG 

Wirtschaftsprüfungsgesellschaft 

Steuerberatungsgesellschaft 

Friedinger Strasse 2 . 78224 Singen 

Postfach 501 . 78205 Singen 

fon +49.7731.99 80-0 

fax +49.7731.99 80-20 

e-mail info@wengert-ag.de 

www.wengert-ag.de 

Allconsult GmbH 

Unternehmensberatungsgesellschaft 

Oderstr. 35. 78244 Gottmadingen 

fon +49.7731.99 80-0 

fax +49.7731.99 80-20 

e-mail info@allconsult-gmbh.de 

www.allconsult-gmbh.de 

legally represented by the chief executive officer Mr. Dr. Wilhelm Bender as well 

as the other executive board members Mr. Prof. Dr. Manfred Schölch, Mr. Dr. 

Stefan Schulte, Ms. Prof. Dipl.-Ing. Barbara Jakubeit, Mr. Herbert Mai and Mr. 

Peter Schmitz, ibidem, as well as the supervisory board, namely the executive 

chair Mr. Roland Koch, c/o the State Chancellery of Hesse, Bierstadter Straße 

2, 65189 Wiesbaden 

on the grounds of: 

contesting the resolutions of the general shareholder meeting 

- defendant -

- 2 - 

in the name of the plaintiff and her power of attorney the following charges are 

brought with the following claims: 

1. The defendant's general shareholder meeting resolutions of June 25, 

2003 at which the exoneration of the management committee (point 

two of the agenda) and that of the supervisory board (point three of the 

agenda) were issued are declared null and void. 




2. The defendant bears the court costs. 

On the grounds of: 

The plaintiff is a partnership with limited liability based in 78244 Gottmadingen. 

It is registered at the Commercial Register Singen under the commercial 

register HRB 290. At the time of the defendant's general stockholders meeting 

on June 25, 2003 the plaintiff was a share holder of the defendant and is so to 

this day. Shareholder of record can be substantiated among others from certification 

at the Baden-Würtembergischen Bank AG and the plaintiff's share register. 

Evidence: 

Written confirmation from the Baden-Wuerttembergischen- 

Bank AG 

- Enclosure K 1- 

The defendant is a stock corporation based in Frankfurt am Main, registered 

with the Commercial Register of the district court Frankfurt am Main under 

commercial register HRB 7042. The company's activity is the operation, maintenance, 

development and the expansion of the Frankfurt am Main airport and 

other airports in and outside of Germany as well as the performance of related 

services and the application and marketing of knowledge and abilities of such 

activities in Germany and elsewhere. Due to the fact that the controlling interest 

in the company is held by the Federal Republic of Germany (18.4%), the 

Land Hesse (32.1%), the Stadtwerke Frankfurt am Main Holding GmbH (20.5%), 

and that there exists a consortium agreement between these parties, the defendant 

is a publicly owned company. 

On June 25, 2003 the defendant held its ordinary general meeting in Frankfurt. 

Among the items on the agenda were the following: 

• Topic 2: passing of a resolution to exonerate the management 

board for the business year 2002 

• Topic 3: passing of a resolution to exonerate the supervisory 

board for the business year 2002 

The resolutions put forward by the administration, that is to grant the exonerations, 

were passed by the general meeting. However, exoneration should not 

have been granted for the following reasons: 

From the defendant's management report 2002 and the attached year-end report 

to Dec. 31, 2002, it is discernible that as a result of the special burden 

resulting from the complete write-off of the financial engagement at the terminal 

construction at the Ninoy Aquino International Airport in Manila, the defendant 

is reporting a net profit of zero for the business year 2002 and because of 

this is unable to distribute a dividend for this fiscal year.

- 3 - 

Evidence: 

the defendant's annual report for 2002 (page 11) which is being 

presented in the contest. 



In the year 2002 unbudgeted write-offs in the amount of EUR 289,500,000 

occurred in relation to the Manila project. In the year 2001 the write-offs added 

up to EUR 59,100,000. 


Evidence: the defendant's 2002 business report (page 95) 

According to press reports the defendant intends to make investments totalling 

USD 380,000,000 by the beginning of May 2003. 

Evidence: press report in the Handelsblatt of 06. 05. 2003 

-Enclosure K2- 

Up to this date funds in this amount have been spent for the involvement in 

and for loans, guarantees and suretyships for a company called "Philippine 

International Air Terminals Co. Inc." ("POATCO"), based in Manila/Philippines. 

By now the interim damage runs at a minimum of EUR 450,000,000. 

Evidence: 

Expert's report 

A further significant financial loss is to be expected. In the meantime the defendant 

has conceded the total write-off for the financial engagement in the 

Manila project. 

Evidence: defendant's business report for 2002 (page 11) 

The background facts are: In 1999 the defendant acquired a 30% share in the 

company PIATCO, which was to build a new passenger terminal (Project "NAIA 

IPT 3") at Manila International Airport (Ninoy Aquino International Airport – 

"NAIA"). The company PIATCO was established during 1996 by the Philippine 

business person Cheng. During 1997 PIATCO entered into several contracts 

with the Philippine government in power at that time. Before the defendant acquired 

an interest in PIATCO in 1999, its management committee arranged for 

a due diligence audit to be conducted by a law firm based in Manila. 

Evidence: 

Legal due diligence report to be presented by the defendant 

This due diligence report showed that the contracts entered into with the Philippine 

government during 1997 regarding the operating franchise of a third 

airport terminal with the project name NAIPA ITP 3 are null and void and/or 

contestable because they contravene Philippine law. 

This due diligence report was also forwarded to the defendant's supervisory 

board. Nonetheless the supervisory board approved an investment. 

Evidence: 

Testimonial from the supervisory board members involved, 

whose names and addresses are to be provided by the defendant

- 4 - 

Supervisory board meeting minutes which the defendant is to 

provide 



In addition the above mentioned due diligence report was not mentioned in the 

defendant's prospectus. 


Evidence: 

Defendant's prospectus from 08. 06. 2001 to be provided by 

the defendant 

Also an additional experts report commissioned by the supervisory board and 

conducted by the law firm Haarmann, Hemmelrath and Partners in 2002 concluded 

that an involvement in PIATCO would result in a considerable risk. 

Evidence: 

Experts report by the law firm Haarmann, Hemmelrath and 

Partners, to be provided by the defendant 

At this time the defendant's interest in PIATCO amounts to about 40%, that of 

the family-owned company Cheng/Philippines about 60%. At the same time the 

defendant put up the lion's share of the EUR 500,000,000 investment so far 

with a minimum of about EUR 450,000,000, resulting in a total investment 

volume of at least 80%, but holding only 40% of the voting rights. 

In May of 2003 the highest court in the Philippines declared the consortium's 

contracts for null and void because when the contracts were awarded in 1997 

PIATCO did not have sufficient financial capacity at its disposal. 

The court hereby confirmed the corresponding decision of the new Philippine 

government under president Arroyo. 

The new government also voiced the concern that PIATCO's terminal contracts 

with the former government were entered into under the suspicion of corruption. 

Evidence: Press report in the Handelsblatt of 06. 05. 2003 

-Enclosure K 2- 

At this time the Manila Project NAIA IPT 3 is almost completed, stands empty 

and is not being used causing additional costs to incur. Due to interest receivable 

in the millions, the defendant's commitment in Manila with guarantees 

and suretyships had already reached a level of EUR 400,000,000 by the third 

quarter of 2002. Already in 2001 the defendant was forced to make extraordinary 

write-offs in the order of EUR 60,000,000 at the Philippine project. One 

must assume that to this point in time a total damage of EUR 450,000,000 

has accumulated. 

1. The defendant's management committee has disregarded the following 

responsibilities: 

§ 91 II of the companies act requires that the management committee must 

introduce measures, in particular to set up a supervisory system, so that developments 

endangering the continued existence of the company are recognised 

early on. § 91 II of the companies act puts in concrete terms different

- 5 - 

aspects of the management responsibilities according to § 76 I of the companies 

act. Here it deals with the management board's overall responsibilities. 

§91 II commits the management committee to ensure, through appropriate 

measures, the early recognition of developments endangering the existence of 

the company (ensuring the company's survival). What is more, §91 II of the 

companies act is to be read in connection with § 317 IV of the companies act 

which includes appropriate measures for companies with official stock market 

quotation for their year end audit. 




Essentially the law (companies act, German commercial code) requires the 

establishment of risk management. 

Developments jeopardizing the existence of a business are changes in risk 

levels specific to each enterprise. According to the preamble (Reg. Begr., BT- 

Drucks. 13/9712 page 15) this also includes the involvement in risky businesses. 

Under this preamble ‘jeopardizing the existence of a business’ means 

that damaging changes can have a considerable effect on the net worth position, 

profitability or the financial situation of the stock corporation (Hüffner, 

companies act, § 91 Rz. 6). The managing board must implement measures 

leading to the early detection of developments described above. Developments 

are recognized when the management board becomes aware of them. It is best 

for this to happen when corrective action can be applied early enough to prevent 

jeopardizing damages from causing extensive harm (compare with Reg. 

Begr., BT-Drucks. 13/9712 page 15). In particular the management committee 

must establish a supervisory system which monitors the implementation of the 

early detection measures introduced. 

Furthermore management committee members must apply the care of an orderly 

and conscientious business manager (§ 93 I 1 companies act). The description 

found in § 93 I 1 companies act is more tangible, connecting with the 

version in § 76 I companies act of general rules of conduct in §§ 276 I 2 of the 

German civil code, and 347 German commercial code. Important is how a conscientious, 

independently acting manager of a company of a specific kind, who 

does not deal with his own resources but, like a trustee, is responsible for the 

investment of others, is to conduct himself (compare BGHZ 129, 30, 34). In 

addition members of the management board are subject to loyalties extending 

above and beyond the standards set in § 242 of the German civil code. With 

the appointment to the management board the loyalties have a contractual 

basis so that a derivation from § 93 I 1 of the companies act is not required. 

In this case no effective control system in the sense of § 91 II of the companies 

act was established. Otherwise it would have become evident during the 

assessment for the participation in the company Piatco that right from the beginning 

there existed grounds for contestation and or revocation under Philippine 

law regarding the terminal contracts. ‘Developments jeopardizing the existence 

of a business’ also includes the entering of a business transaction 

where a very high risk level is involved (compare Hüffer, § 91 Rz. 6). This increased 

business risk should already have been recognized during the investment 

acquisition since a corresponding due-diligence report mentioned the invalidity 

and/or the contestation possibilities regarding the terminal contracts, 

thereby confirming the obvious increased risk. The financial commitment in the 

Manila project in the order of at least EUR 450,000,000 definitely puts the 

existence of the company in jeopardy. The defendant has at its disposal a capital 

stock of EUR 902,110,580. The present investment volume in the Manila 

project is at present about 50% of the defendant’s capital stock. In addition it 

is to be noted that due to the total write-off no dividend could be distributed for 

the business year 2002. In addition the threat to the company’s existence can

- 6 - 

not be negated because the public is the defendant’s majority shareholder. 

Rather the management committee received public funds to administer in trust. 

In view of the extremely difficult public budgetary situation, a stricter standard 

must be imposed on the management committee. This is especially the case 

because the directly involved tax payer is not represented by an effective control 

agency. 




It follows that if the obviously higher financial risk regarding the acquisition of 

the partnership in the company PIATCO was not recognized, then the management 

committee violated the obligation under § 91 II of the companies act. If 

however the increased risk was recognized – as is to be assumed – then the 

monitoring system probably functioned properly, but in this case the management 

committee would have breached its responsibility under § 93 I 1 of the 

companies act. 

As a proper and conscientious manager the management board should have, 

immediately after recognizing the increased risk, distanced itself from the acquisition 

or formulated the contract in such a way that on one hand there existed 

no reasons to contest nor nullify the contract and on the other hand ensure 

that the plaintiff had improved rights and a better basis for negotiations. 

Now however the plaintiff only has an involvement of 40% in PIATCO and only 

has voting rights at this level. In contrast however the plaintiff came up with at 

least 80% of the financial investment for the terminal project. 

On the other hand there exists the suspicion shared by the Philippine government 

that the terminal contracts from 1997 were set up under the influence of 

corruption. Also in this case there either existed no monitoring system which 

would have recognized that on the basis of the suspicion of corruption the terminal 

contracts of 1997 were susceptible to contestation or nullification, or the 

management committee violated – as is to be assumed – its responsibilities 

under § 93 I of the companies act despite the warning of the due diligence 

report. 

No investment acquisition should have occurred under these conditions in 

1999. In particular with an investment in the Philippines, stricter cautionary 

criteria should have been employed. This is especially the case after a legal 

opinion came to the conclusion that the contracts with the Philippine government 

were not legally viable. Due to the total write-offs concerning the company 

PIATCO, as well as the loans, guarantees and suretyships with a total of at 

least EUR 450,000,000, the defendant is facing a considerable threat to its 

existence. 

2. The supervisory board has contravened the following responsibilities: 

The supervisory board is in flagrant breach against its monitoring responsibilities 

under § 111 of the companies act. 

According to § 111 I of the companies act the supervisory board is responsible 

for the supervision of the management. Because the company’s management 

is the responsibility of the management board (§§ 76 I, 77 I of the companies 

act), the management board acts as the monitoring body. Not only the actual 

management decisions can be considered part of the management board’s 

responsibilities as monitoring body. Rather important individual measures also 

fall under the responsibility of monitoring (Hüffer, companies act § 111 Rz 3).In 

order to put things into concrete terms those responsible under § 90 of the 

companies act are placed into an especially important position (compare Hüff-

- 7 - 

ner, a.a.O.). § 111 I of the companies act does not stipulate that each measure 

is taken on only by the management board. Therefore the supervisory responsibility 

also extends to the activities of subordinate levels as long as leadership 

decisions are made there or essential measures are taken up there 

(h.M., compare BGHZ 75, 120, 133). 

Part of the supervisory duty is not only the controlling of past occurrences, such 

as the investigation and pursuance of damage claims against management 

board members, but also preventive monitoring (compare Hüffer, a.a.O., Rz. 5). 

By advising the management board the supervisory board has an influence on 

future business policy. In this sense the supervisory board is involved in the 

management board’s leadership responsibilities. 




The monitoring criteria are: lawfulness, regularity and appropriateness (in the 

economic sense) in the business’s administration by the management board. It 

is acknowledged that the supervisory board must also ensure regularity and 

appropriateness (BGHZ 75, 120, 133; BGHZ 114, 127, 129, f.). Especially 

important to regularity is sensible organization emphasizing planning and accountancy. 

Expediency must be oriented towards results. The supervisory 

board’s main task is to ensure that the management board acts responsibly 

and ensures the existence of the business as well as its continued profitability 

(Hüffer, a.a.O., Rz. 7). 

In the event that the corporation’s situation is tense or there exist other risky 

factors, the supervisory board’s monitoring activities must be increased befitting 

the situation at the time (Hüffer, a.a.O.). In a critical situation the management 

board’s participation in the corporation’s dealings could increase to 

the level of temporary control especially if the supervisory board finds itself in 

the position of having to exchange members (§ 84, Companies Act). 

On the basis of the due diligence report of 1999 and the expert report commissioned 

in 2002 the supervisory board was aware that for the investment 

acquisition in PIATCO, the terminal contracts concluded in 1997 between 

PIATCO and the Philippine government were contestable and in danger to be 

declared invalid. Nonetheless the supervisory board voted in favor of an investment 

acquisition and approved the investment project. Due to the total 

write-off caused by the participation in PIATCO as well as the granted loans, 

guarantees and suretyships with a present total volume of at least EUR 

450,000,000, a considerable threat to the existence of the corporation ensued. 

As a result of the preceding facts the exonerations approved at the general 

meeting are to be declared null and void. 

The claimant has declared opposition regarding all of the defendant’s resolutions 

for documentation by the attorney. 

Evidence: Confirmation of objection by the attorney from 06. 25 2003 

- Attachment K 3 – 

The plaintiff is justified for the contestation as a properly represented share 

holder at the general meeting. 

The court commissioned is solely responsible. The case is a commercial matter.

- 8 - 

Mit freundlichen Grüßen 


Firm of solicitors 




Andreas Widmann 

(Attorney at law)

Wengert GmbH - Wengert Gruppe

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