The acquired treasury shares may be used for all legally permissible purposes, in particular for the following:

Transcription

1 Report of the Executive Board to the Annual General Meeting regarding point 7 of the agenda about the exclusion of subscription and tender rights according to Sec. 71 para.1 no. 8 AktG in conjunction with Sec. 186 para. 3 and para. 4 sentence 2 AktG: Regarding point 7 of the agenda, it is proposed to the Annual General Meeting to authorize the Company in accordance with Sec. 71 para. 1 no. 8 AktG until February 27, 2018 to acquire treasury shares up to 10 % of the existing subscribed capital at the time of the Annual General Meeting resolution by including shares already acquired or attributable to the Company. The Company shall be authorized according to the proposed resolution to dispose of or issue the treasury shares acquired based on this authorization in part to the exclusion of the shareholders' subscription rights. The proposed authorization for the acquisition of treasury shares replaces the previous authorization granted by the Annual General Meeting on March 1, The authorization shall enable the Company to make use of the instrument of treasury share acquisition until February 27, 2018, and therefore for the legally intended authorization term of 5 years for the first time. The acquisition of treasury shares may only be carried out via the stock exchange or via a tender offer to all shareholders or through an open invitation to submit such a purchase offer. This allows all shareholders to equally obtain the possibility to dispose of shares to the Company provided that the Company makes use of the authorization to acquire treasury shares. Upon official invitation to make an offer, addressees of the invitation may decide how many shares and upon determination of a rate range for which price they would like to offer them to the Company. In the event that a public purchase offer is oversubscribed or if, in case of an invitation to make a purchase offer among several equal offers, not all of them can be accepted, the acquisition or the acceptance must occur in proportion to the respectively offered shares. However, provision is to be made to give priority to small holdings or small parts of holdings offered up to a maximum of 100 shares. This possibility serves the purpose of avoiding fractional amounts and smaller remainders of stock in the number of shares to be acquired and therefore to improve the ease of the technical handling. The offered purchase price or the threshold values of the offered purchase price range per share (excluding transaction costs) shall not be more than 10 % or less than 20 % than the mean value of closing rates for the Company s shares of the same category in Xetra trading (or a comparable successor system) on the last five trading days at the Frankfurt Stock Exchange before the publication of the offer or the public invitation to submit a purchase offer. If significant variations to the relevant exchange rate occur after the publication of a purchase offer or a public invitation to submit such an offer, the closing rate for Company shares of the same category in Xetra trading (or a comparable successor system) on the last trading day of the Frankfurt Stock Exchange before the possible amendment may be used. The purchase offer or the invitation to make such an offer can stipulate further conditions. The acquired treasury shares may be used for all legally permissible purposes, in particular for the following:

2 - 2 - Based on legal regulations, the treasury shares acquired by the Company may be disposed of via the stock exchange or a public offer to all shareholders. With these sale possibilities, the shareholders' right to equal treatment shall remain protected. Furthermore, the proposed resolution prescribes that the Executive Board may also dispose of the treasury shares that were acquired based on the authorization in other ways than via the stock exchange or through an offer to all shareholders, provided that the treasury shares are disposed of in exchange for a cash payment at a price that isn't significantly lower than the Aurubis AG shares' exchange rate of an equal category at the time of entering into the disposal obligation. With this authorization, which is equal to the exclusion of a subscription right, the possibility for an easier exclusion of subscription rights allowed in Sec. 71 para. 1 no. 8 AktG is applied by applying Sec. 186 para. 3 sentence 4 AktG respectively. In the Company's interest, this shall create in particular the possibility to offer company shares to investors and/or expand the range of shareholders. This is also supposed to enable the Company to react quickly and flexibly to stock exchange situations. The shareholders' interests are protected because the shares may only be disposed of at a price that is not significantly lower than the exchange rate of the Aurubis AG share of the same category at the time of entering into the disposal obligation. The final determination of the disposal price for the treasury shares is made promptly before the utilization. The Executive Board will keep a possible deduction from the exchange price as low as possible in accordance with the market conditions prevailing at the time of placement. The deduction from the exchange price at the time of utilization of the authorization shall in no case amount to more than 5 % of the relevant exchange price. This authorization is limited to a maximum of 10 % of the Company's subscribed capital, as well at the time of entering into effect as at the time of utilization of this authorization. This 10 % subscribed capital limit shall include new shares issued during the period of this authorization from authorized capital in accordance with Section 186 para. 3 sentence 4 AktG excluding subscription rights. Furthermore, this 10 % subscribed capital limit includes shares that are issued or are to be issued to service bonds with conversion or option rights or rights to opt, provided the bonds were issued during the period of this authorization based on an authorization to issue convertible and/or warrant bonds under the respective application of Sec. 186 para. 3 sentence 4 AktG excluding subscription rights. The inclusion ensures that acquired treasury shares are not disposed of with the exclusion of the subscription rights according to Sec. 186 para. 3 sentence 4 AktG if this would lead to the event that the shareholders' subscription rights were excluded directly or in respective application of Sec. 186 para. 3 sentence 4 AktG for a total of more than 10 % of the subscribed capital without a special substantial reason. This extensive limitation is in the interest of shareholders who wish to maintain their stake to the greatest extent possible. The shareholders furthermore have the possibility to maintain their stake via the stock exchange purchase of Aurubis AG shares. The authorization is of interest to the Company because it provides higher flexibility. The previously mentioned inclusion shall, however, be canceled in the event that the Annual General Meeting resolves a new authorization for the issuing of new shares from authorized capital according to Sections 203 para. 2, 186 para. 3 sentence 4 AktG after the issue of new shares from authorized capital with the exclusion of subscription rights according to Sec. 186 para. 3 sentence 4 AktG. An inclusion shall

3 - 3 - also be canceled if the Annual General Meeting resolves a new authorization for issuing convertible and/or warrant bonds with the option for an eased exclusion of the subscription rights in respective application of Sec. 186 para. 3 sentence 4 AktG after an issue of conversion and/or warrant bonds in respective application of Sec. 186 para. 3 sentence 4 AktG because in these cases, the Annual General Meeting has once more made a decision regarding the authorization of an eased exclusion of subscription rights, which drops the reason for the inclusion. In the event that new shares can be issued from authorized capital or if convertible and/or warrant bonds can be issued under eased exclusion of subscription rights, the authorization for the eased exclusion of the subscription rights shall also exist for the disposal of treasury shares. As the new authorization for the eased exclusion of subscription rights enters into effect, the blockade regarding the disposal of treasury shares created by the issue of new shares from authorized capital according to Sections 203para. 2, 186 para. 3 sentence 4 AktG or by the issue of convertible and/or warrant bonds with the possibility of a subscription right exclusion in accordance with Sec. 186 para. 3 sentence 4 AktG shall be canceled. As the majority requirements for such a resolution are identical with those of a resolution regarding the authorization for the disposal of treasury shares applying the eased exclusion of subscription rights according to Sec. 186 para. 3 sentence 4 AktG, the resolution of the Annual General Meeting regarding the granting of a new authorization for the exclusion of subscription rights according to Sec. 186 para. 3 sentence 4 AktG in the scope of authorized capital or a new authorization for the issue of convertible and/or warrant bonds with the possibility to exclude subscription rights according to Sec. 186 para. 3 sentence 4 AktG shall also be seen as a confirmation regarding the authorization resolution on the disposal of treasury shares according to Sections 71 para. 1 no. 8, 186 para. 3 sentence 4 AktG. In the event of a new utilization of an authorization to exclude subscription rights directly or in the respective application of Sec. 186 para. 3 sentence 4 AktG, the inclusion shall occur once again. As a result, this regulation in combination with the identical inclusion regulations in the scope of the other authorizations for the exclusion of subscription rights in accordance with or pursuant to Sec. 186 para. 3 sentence 4 AktG at the issue of new shares from authorized capital (agenda point 7 of the Annual General Meeting of March 3, 2011 in the version dated March 1, 2012, changed by the resolution regarding agenda point 7) and at the authorization for the issue of convertible and/or warrant bonds (agenda point 8 of the Annual General Meeting of March 1, 2012) lead to the fact that (i) the Executive Board may only make use of the eased subscription right exclusion for up to 10 % of the subscribed capital according to Sec. 186 para. 3 sentence 4 AktG once without a renewed resolution of the Annual General Meeting during the (remaining) period of the authorization and (ii) in case of a renewed resolution of the Annual General Meeting, the Executive Board once again has the freedom to choose whether it makes use of the simplifications of Sec. 186 para. 3 sentence 4 AktG within the legal limitations in conjunction with cash capital raises from authorized capital, the issuing of convertible and/or warrant bonds in exchange for cash payments or the disposal of treasury shares in exchange for cash payment. These requirements take due account in accordance with the legal regulation of the interests of shareholders with regard to dilution protection of their stake. Regarding the identical inclusion regulations within the scope of the authorized capital and the authorization for issuing convertible and/or warrant bonds, please see the reports of

4 - 4 - the Executive Board about the agenda points 7 and 8 of the Annual General Meeting on March 1, 2012, which are published and may be viewed as a part of the invitation in the Federal Gazette (Bundesanzeiger) at and which may be viewed as part of the minutes of the notary public of the Annual General Meeting on March 1, 2012 in the commercial register of the Hamburg local court. The Executive Board shall furthermore be authorized, with the consent of the Supervisory Board, to utilize the treasury shares acquired on account of the proposed authorization as consideration for contributions by third parties, in particular for the acquisition of companies or participating interests in other companies by the Company itself or by companies dependent or majority owned by it, and in conjunction with mergers. The international competition and the globalization of the economy increasingly demand this form of acquisition financing as well. The herein proposed authorization gives the Company the necessary room for action in order to be able to make use of arising acquisition opportunities in a prompt and flexible way, both in national and international markets. This is ensured with the proposed exclusion of subscription rights. When determining the valuation ratio, the Executive Board shall ensure that the shareholders' interests are protected. The Executive Board shall use the exchange price of the Aurubis AG shares for rating the value of the shares granted as consideration, without applying a schematic link to a stock market price, in particular so as not to risk achieved negotiation results through fluctuations of the exchange price. In the decision on the nature of the share procurement to finance such transactions, the Executive Board shall be guided by the interest of the Company and the shareholders alone. Furthermore, the Executive Board shall be authorized to utilize the treasury shares acquired based on the proposed authorization to fulfill conversion rights or obligations of holders or creditors relating to convertible and/or warrant bonds issued by the Company or group companies, in particular based on the authorization resolved under point 8 of the agenda of the Annual General Meeting on March 1, To the extent that the Company makes use of this option, no conditional increase in capital needs to be carried out. The interests of the shareholders are not affected by this additional option. The utilization of existing treasury shares in place of a capital increase or a cash payment can be economically logical and in this respect, the authorization shall increase the flexibility. The details of the authorization for issuing convertible and/or warrant bonds, profit participation rights and/or income bonds (or combinations of these instruments) are expressed under point 8 of the agenda of the Annual General Meeting of March 1, 2012, and can be viewed in the Federal Gazette at and also as a part of the minutes of the notary public from March 1, 2012 in the commercial register of the Hamburg local court. Use of the previously mentioned utilization options may not only be made regarding such shares that were acquired based on the authorization resolution. The authorization also includes such shares that were acquired in accordance with Sec. 71d sentence 5 AktG. It is favorable and creates further flexibility to be able to use these treasury shares in the same way as the shares acquired based on this authorization resolution.

5 - 5 - The treasury shares acquired based on this authorization resolution may be withdrawn by the Company without a new resolution of the Annual General Meeting. In accordance with Sec. 237 para. 3 no. 3 AktG, the Company's Annual General Meeting can resolve the withdrawal of its fully paid no-par-value shares without the necessity of reducing the Company's subscribed capital. The proposed authorization expressly intends this alternative next to the withdrawal with a capital reduction. A withdrawal of the treasury shares without capital reduction automatically raises the arithmetical stake of the remaining no-par-value shares in the Company's subscribed capital. The Executive Board shall therefore be authorized to make the amendments to the Articles of Association that become necessary regarding the number of no-parvalue shares that changes consequently to a withdrawal. The Supervisory Board can determine after due assessment that measures by the Executive Board based on the Annual General Meeting authorization according to Sec. 71 para. 1 no 8 AktG may only be carried out with its consent. The Executive Board shall inform the next Annual General Meeting of any utilization of the authorization. Hamburg, January 2013 Aurubis AG Peter Willbrandt Dr. Stefan Boel Erwin Faust Dr. Michael Landau