Der Bürgerkapitalwarrant

1. A citizens' capital warrant shall arise in favour of the Reserve by operation of law on the date on which designation of a covered undertaking takes effect. References in this Article to designation shall mean that effective date. The covered undertaking shall issue the instrument recording that warrant within three months of designation. Failure or delay in issuing the instrument shall not postpone the attachment or crystallisation of the warrant. No more than one warrant shall arise in respect of the same designation, without prejudice to paragraphs 11 and 12.

2. The citizens' capital warrant shall entitle the Reserve, upon the first liquidity event following designation or upon crystallisation under paragraph 3, whichever occurs first, and upon no other occasion, to subscribe at nominal value for newly issued shares representing 3 % of the fully diluted capital of the covered undertaking determined immediately before that event or, in the case of paragraph 3, immediately before the date of crystallisation.

3. The citizens' capital warrant shall also crystallise, and shall be exercisable on the same terms, where either of the following occurs before a liquidity event:
(a) shareholder extraction by the covered undertaking in any period of three consecutive financial years exceeds 25 % of its turnover from the goods and services referred to in Article 3(1)(a) over the same period;
(b) seven years have elapsed since the date on which the warrant arose.

For a warrant arising under paragraph 11 or 12, the period referred to in point (b) shall run from the date on which the warrant of the original covered undertaking arose. A transfer or a fresh recording instrument shall not restart that period.

Crystallisation under this paragraph shall take effect on the last day of the financial year in which the condition is met, and the valuation under Article 6 shall be performed as at that date.

4. The citizens' capital warrant shall:
(a) confer no voting rights, no rights of information beyond those provided in this Regulation and no right to participate in the management of the covered undertaking;
(b) entitle the Reserve to shares which rank, as regards dividends, other distributions and the proceeds of any sale, liquidation or winding up, equally with the class of shares ranking most favourably in those respects among the classes created after the designation of the covered undertaking, and otherwise equally with its ordinary shares, without affecting the ranking of claims of creditors;
(c) be incapable of settlement in cash or in assets other than the shares referred to in paragraph 2;
(d) be non-transferable, save to a successor of the Reserve established by Union legislative act;
(e) confer no right to require subscription before the first liquidity event following designation or crystallisation under paragraph 3, whichever occurs first. This point shall not limit any issuance, notification, information, valuation or anti-avoidance obligation laid down in this Regulation.

Shares subscribed pursuant to the citizens' capital warrant shall be non-voting for as long as they are held by the Reserve.

5. The right to the subscription referred to in paragraph 2 shall vest by operation of law at the completion of the liquidity event or on the date of crystallisation under paragraph 3. The number of shares to be subscribed shall be determined by the valuation under Article 6, and the subscription shall be executed accordingly. Where the law governing the covered undertaking does not give effect to the first sentence, the covered undertaking shall procure a subscription of equivalent effect within the execution period laid down in this paragraph. It shall put in place the arrangements necessary to secure that result no later than the liquidity event or the date of crystallisation under paragraph 3; those arrangements shall provide for the share count to be fixed by the valuation under Article 6. The dilution resulting from the subscription shall not exceed the percentage laid down in paragraph 2. The covered undertaking shall execute the subscription within 20 working days of the delivery of the valuation referred to in Article 6, and the Reserve shall pay up the shares in full in cash at their nominal value upon execution.

6. A covered undertaking shall notify the Reserve and the Commission of any impending liquidity event no later than the earlier of its public announcement and 30 working days before its completion. Where an event cannot reasonably be known by that deadline, the undertaking shall notify it without undue delay after becoming aware of it, stating the reasons why earlier notification was not possible. The burden of establishing those reasons shall rest on the undertaking. A notification shall not be a condition for crystallisation.

The undertaking shall notify the Reserve and the Commission of crystallisation under paragraph 3 within five working days of the end of the relevant financial year. It shall provide its extraction calculation and supporting management records, without awaiting annual audit, and correct them without undue delay when audited information is available. The Commission shall appoint the valuer in time for the deadline in Article 6(3), using provisional information where necessary. The undertaking shall provide that valuer with the capital and transaction records needed for the valuation. Correction of the information shall not postpone the original crystallisation date or exclude a correction under Article 6(4).

7. Article 49, Article 68(1), (2) and (3), the first subparagraph of Article 70(2), Article 72 and Article 73 of Directive (EU) 2017/1132, and any corresponding provisions of the law of a Member State conferring pre-emption rights, requiring a decision of the general meeting or requiring an expert report on consideration, shall not apply to the issuance of the citizens' capital warrant or to the subscription of shares pursuant to it. Provisions of the law of a Member State restricting the proportion, issuance conditions or characteristics of non-voting shares shall not apply to the extent that they would prevent the issuance or holding of shares pursuant to this Article.

8. The issuance of the citizens' capital warrant and the issuance, offer and subscription of shares pursuant to this Article shall not constitute an offer of securities to the public for the purposes of Regulation (EU) 2017/1129, and the admission to trading of those shares shall be exempt from the obligation to publish a prospectus under that Regulation where shares of the same class are already admitted to trading on the same regulated market.

9. The valuation of the fully diluted capital for the purposes of paragraphs 2 and 3 shall be performed by an independent valuer appointed in accordance with Article 6, and shall be open to challenge before the courts in accordance with Article 7 separately from any other element of the designation or the event.

10. An arrangement that subordinates, reduces or defeats the economic participation conferred by this Article shall not be effective as against the Reserve, which shall be placed in the position it would have occupied had the arrangement not been made; the arrangement shall remain effective between the parties to it and as against third parties. In particular, the issuance of shares ranking ahead of those held or subscribable by the Reserve, any alteration of the rights attaching to any class of shares, and any reorganisation of capital shall be of no effect as against the Reserve to the extent that its main purpose or one of its main effects is to place the Reserve in a position less favourable than that provided for in paragraph 4(b).

The first subparagraph shall not apply to an issuance of shares or other instruments for new consideration in money or money's worth, at arm's length, to persons who are not members of the same group as the covered undertaking, do not control it, are not connected with it and are not acting in concert with any person who controls it, where at the time of the issuance the covered undertaking is in a likelihood of insolvency within the meaning of Directive (EU) 2019/1023 or the issuance is necessary to comply with a prudential requirement under Union law, and only to the extent of the new consideration provided. To the extent that the preference, ranking or other advantage conferred by the issuance exceeds the new consideration provided, the first subparagraph shall apply to the excess. The covered undertaking shall bear the burden of establishing that the conditions of this subparagraph are met.

11. Where a covered undertaking transfers automated assets to another undertaking, whether by sale, contribution, licence, demerger, division or otherwise, where the transfer, alone or together with related arrangements, confers in substance the economic benefit of the automated assets on the transferee, and the transfer is not made at arm's length or the transferee is a member of the same group or is controlled, directly or indirectly, by persons who control the covered undertaking, the transferee shall issue to the Reserve a citizens' capital warrant within three months of the transfer as if it were a covered undertaking. The warrant shall arise on the date of the transfer. The obligations of the covered undertaking under this Article shall continue in respect of the automated assets it retains. The aggregate of the subscriptions to which the Reserve is entitled in respect of the same designation, under this paragraph and under paragraph 2, shall not exceed the percentage laid down in paragraph 2 of the combined fully diluted capital of the covered undertaking and of every transferee, and the valuation under Article 6 shall determine the subscription in each of them accordingly.

Paragraphs 2 to 10 and Articles 6, 7 and 13 shall apply to the transferee as they apply to a covered undertaking. For paragraph 2, references to designation shall mean the date of transfer; the original date shall continue to apply to ranking under paragraph 4(b). Where the original warrant has already crystallised, or its paragraph 3 date has been reached, the transferee's warrant shall crystallise on the transfer date. The aggregate cap in the first subparagraph shall take account of shares already subscribed in respect of that designation.

The obligations of a transferee under this paragraph shall arise irrespective of whether the transferee meets the conditions laid down in Article 3, and this paragraph shall apply to any onward transfer of the automated assets by a transferee as it applies to a transfer by a covered undertaking. For the purposes of the valuation under Article 6, the value of the fully diluted capital of the transferee shall reflect the automated assets at the value they would have had on a transfer at arm's length.

12. Where the automated assets of a covered undertaking are acquired by another undertaking in or in consequence of insolvency proceedings, a restructuring procedure, including a procedure under Directive (EU) 2019/1023, or any comparable procedure, and, upon completion, the transferee is controlled directly or indirectly by persons who controlled the covered undertaking, or those persons hold, directly or indirectly, the majority of the economic rights in the transferee, the obligations under this Article shall attach to the transferee as if it were the covered undertaking, and the transferee shall issue a citizens' capital warrant afresh within three months of the completion of the acquisition. The warrant shall arise on completion of the acquisition, or on the later acquisition of control referred to in the second subparagraph. Paragraphs 2 to 10 and Articles 6, 7 and 13 shall apply to the transferee. The clock, crystallisation on transfer and aggregate-cap rules in paragraph 11 shall apply correspondingly.

For the purposes of this paragraph, persons acting in concert with those who controlled the covered undertaking, and persons connected with them, shall be treated as those persons; and where any of them acquires control of the transferee, at any time while it holds the automated assets, the obligations under this Article shall attach to the transferee from the date of that acquisition.

This paragraph shall not otherwise apply where control of the transferee is acquired by persons who did not control the covered undertaking, and in that case the extinguishment of a warrant in such a procedure shall give rise to no obligation under this Article.