Legal

What is a virtual share from a legal perspective?

Virtual share is an electronic record of a certain right of the recipient towards the issuer. For most virtual shares supported by KOOS, it is the right to demand that the issuer makes a certain payment to the recipient if a certain event happens, or a certain date arrives. Correspondingly, it is an obligation of the issuer to meet the promise embedded within the virtual share. This legal relationship between the issuer and the recipients is defined in a document called “terms of virtual shares”. For some virtual shares (previously referred to as tokens), it may be a right to use certain content, product, or service.

Register of virtual shares and entitled recipients kept by the issuer through KOOS platform. The rights represented by a virtual share are special – they can be exercised/enforced only by a person who has been registered in the register as the virtual shareholder.

A virtual share is not an (actual) share issued by the issuer and virtual shareholders do not enjoy all the rights our (actual) shareholders have (e.g., no voting rights). Virtual shares give only such benefits as set out in the terms of the respective virtual share.

Are virtual shares part of the captable?

Captable is a document that usually lists all shareholders as well as persons that have the right to become shareholders in the future, such as employee option holders. As virtual shareholders are not actual shareholders and virtual shares do not give the right to become actual shareholders in the future, you may have a valid question – should virtual shares be reflected in the captable?

Short answer is yes – we generally recommend to include also virtual shares in the captable.

This is because your shareholders, above all, investors read your captable to understand how are profits and returns allocated in your company, for example, how are profits distributed and what will shareholders get when the company is acquired. In this context it is important to understand that certain economic benefits given to your virtual shareholders will “dilute” similar economic benefits available for actual shareholders. For example, if your virtual shares give the right to receive payment when the company gets acquired, the buyer of your company will (most likely) deduct the money to be paid out to virtual shareholders from the total acquisition price. This means that less money will be distributed to actual shareholders.

In the same way, if your virtual shares give the right to receive payment when dividend is paid to actual shareholders, part of the profits that would otherwise have been distributed to shareholders would be distributed to virtual shareholders. If your virtual shares do not give any right to any dividend-like payments or company sale / liquidation payments, we advise to consult with your lawyers to find out whether to reflect the virtual shares in the captable.

Should you be concerned about virtual shareholders in your captable?

We do not think so - it is important to remember that virtual shareholders are not actual shareholders and they do not have shareholders’ rights, including voting rights in traditional sense. This means that you do not need to invite them to shareholders’ meetings, send them information and documents that you send to actual shareholders or otherwise engage them in shareholders’ matters. For example, you do not need to seek their vote or approval if you wish to adopt shareholders’ resolutions, sign shareholders’ agreements, investment agreements or similar documents or amendments to those documents.

In other words, your virtual shares will not hinder the normal decision making and document signing process in your company, including the process for raising new investments. It is also important to remember that virtual shares do not create financial obligations for your shareholders – all financial obligations arising from virtual shares lie with your company, in the same way as debt raised by your company.

How to reflect the virtual shares in the cap table?

Let’s assume that your company’s current captable is as follows:

You now wish to create a virtual share pool of 5%. In such case, your captable together with virtual shares pool would look like this:

You should think about virtual share pool in the same way as your employee option pool – at the time such pools are created, they are only reserves “on paper” which do not yet dilute the shareholdings or economic benefits of actual shareholders. Dilution will take place only once virtual shares are issued to and accepted by virtual shareholders – in the same way like options will dilute other shareholders only once they have been actually issued, vested and properly exercised by optionholders.

In other words, the creation of a virtual share pool of 5% means that you would in principle be ready to distribute up to 5% of the proceeds of the sale of your company to virtual shareholders. If, by the time your company is actually sold, only 2% has been actually issued and accepted by virtual shareholders, you must distribute 2% of the sale proceeds to your virtual shareholders and the remaining proceeds will be distributed other shareholders, including employee optionholders who have properly exercised their options.

Liquidation waterfall example

In case there is an exit, for example, somebody buys 100% of the shares of the company, the money paid by the buyer would normally be distributed based on the shareholding percentages in your company. For example, in your case, the founders would get 57% of the money and your virtual shareholders would get 5%.

However, let’s assume that your investors – preferred shareholders – have implemented a principle called “liquidation preference” in your company’s documents and that they have used the most commonly used version of that principle – 1x non-participating liquidation preference. This would mean that if the money that your investors would receive in exit based on their shareholding percentages were less than the money they have invested in your company, the investors can choose to get their investment back first. After that the remaining money would be distributed between other shareholders.

Let’s look at some potential scenarios. Let’s assume that your investors have invested 20 MEUR in your company.

Scenario 1 (relatively good exit)

In this scenario, let’s assume that your company is sold for 100 MEUR. In this case, your investors’ shareholding percentage of 100MEUR is higher than the money they invested (23.75% of 100MEUR is 23.75 MEUR > 20 MEUR). In this scenario, the monies would be distributed as follows:

Scenario 2 (moderately bad exit)

In this scenario, let’s assume that your company is sold for 50 MEUR. In this case, your investors’ shareholding percentage of 50MEUR is lower than the money they invested (23.75% of 50MEUR is 11.875 MEUR < 20 MEUR). In this scenario, the investors would first receive their money back and the remaining proceeds would be distributed among other shareholders, including virtual shareholders as follows:

Scenario 3 (very bad exit)

In this scenario, let’s assume that your company is sold for 15 MEUR. Your investors’ shareholding percentage of 15MEUR is (of course) lower than the money they invested (as 15 MEUR < 20 MEUR). In this scenario, all exit money would be distributed to investors and other shareholders, including virtual shareholders would not receive anything:

So, for the purposes of an exit, you should treat your virtual shareholders as if they actually owned 5% of the company through common shares. You should generally view it in this way, although the payment obligation arising from virtual shares lies with your company. However, please consult your tax advisors about potential tax obligations relating to payments under virtual shares as these may affect the waterfall calculations.

Which limitations apply to virtual shares?

Virtual shares are not meant to be issued as financial instruments, e-money, payment instruments or virtual currencies. The purpose of virtual shares is always limited to rewarding the behaviour of issuer’s community. However, regulations vary from country to country, and we are carefully assessing the regulatory requirements in different countries to ensure that our services are compliant with the applicable regulations.

There are certain characteristics related to virtual shares and KOOS services that limit the application of financial regulations, specifically:

• virtual shares are not issued for cash consideration or for consideration other than cash, they cannot be deemed as an investment into an issuer
• virtual shares are issued to a recipient personally for their behaviour and they are genuinely non-transferable. This means that the rights represented by a virtual share can be used only by the recipient who cannot transfer the virtual to a third person. Also, as we see it – virtual share cannot be pledged or otherwise encumbered
• virtual shares are not instruments recorded and transferable in blockchain and they should not become acceptable as a means of payment by third persons
• KOOS platform does not facilitate fundraising or transferability of virtual shares, i.e., it does not bring together issuers and recipients, and it does not bring together recipients with sale or purchase interests.

In addition, KOOS has set eligibility criteria for its services and virtual share programs.

Who is an eligible issuer?

Eligible issuer is a company or other legal entity that has been incorporated in Estonia, Latvia, Lithuania, Finland, UK or in another country which KOOS deems eligible from time to time. In certain circumstances, also a private individual, for example a major shareholder of a company can be an issuer.

KOOS expects to gradually expand the list of eligible countries and this can take place in cooperation with potential issuers from the respective country. It is important that the issuer, and also KOOS, are informed and acknowledge all legal, regulatory and tax implications applicable to virtual share program in that country.

As a rule, the issuer must be a privately held company. This means that its shares, bonds, or other instruments may not be admitted to trading on a stock exchange or other regulated market. If the company is not privately held, then additional rules and restrictions may apply to the issuance of virtual shares and KOOS will consider such issuers on a case-by-case basis. The issuer may not be subject to bankruptcy, liquidation, reorganization or similar proceedings or otherwise in financial difficulty at the time of launch of the program.

Who is an eligible recipient?

Eligible recipient is a private individual (natural person) who is at least 18 years old and has active legal capacity and is residing in an EEA country or in the UK. Eligible recipient may also be a company or other legal entity that has been incorporated in the mentioned country. Similarly to issuers, KOOS expects to gradually expand the list of eligible countries by mapping respective legal and regulatory requirements in potential markets.

If one or more of these criteria is not met by a potential recipient, then the issuer may decide to reserve virtual shares for such person, but the latter can accept the virtual shares only after it has met all the eligibility criteria, for example, become at least 18 years old.

How does the service and virtual shares qualify under financial sector regulations?

The below overview of regulatory matters in different countries is provided for information purposes. KOOS has engaged top tech law firms in Europe, including Ellex and Goodwin Procter to advise it on legal and regulatory matters, so that KOOS can ensure compliance itself and also to inform issuers of legal matters relevant for distributing virtual shares. The law firms who have advised KOOS have not assumed responsibility to anyone other than KOOS. KOOS therefore recommends that each issuer engages their in-house lawyers or external legal advisors to handle these matters.

Please note that the below description is: (i) limited to financial regulatory requirements and does not cover any other matters, including tax, intellectual property or data protection law matters; and (ii) subject to change as the laws, especially those governing crypto-assets, in most jurisdictions are developing and evolving quickly. Also, should the characteristics of the virtual shares or the activities of the issuer or KOOS be different or change, the regulatory implications on the issuers and KOOS need to be re-assessed and taken into account under the Applicable Laws.

Regulatory requirements applicable to KOOS

Based on the legal analysis made, we are of the opinion that from the perspective of the laws of in the EEA and UK (“Applicable Laws”), the activities performed by KOOS, as a software developer, do not qualify as any of the regulated financial or crypto asset services. Firstly, virtual shares (as described above) are not deemed neither as financial instruments, e-money, or virtual currencies and they do not therefore fall under the scope of respective Applicable Laws. Secondly, the services by KOOS in assisting the issuer with the issuance of virtual shares, and making available the application for keeping the register, do not qualify as regulated financial activities (i.e., investment service, payment service, virtual currency service) requiring an authorisation or registration by a respective competent authority.

Being registered and operating in Estonia, KOOS is subject to certain obligations under the Estonian International Sanctions Act which means that KOOS must ensure compliance with the financial sanctions’ regime applicable in Estonia. KOOS is exercising due care to ensure that its services and the platform is not used for breaching or circumventing financial sanctions and will notify the competent authorities accordingly of any such circumstances. In order to apply appropriate checks, KOOS collects and processes information about the issuers and the recipients. Provided that KOOS is registered and operating in Estonia, similar regulations in other EEA countries or in the UK do not apply to KOOS.

Regulatory requirements applicable to the issuers

Below we have described certain regulatory aspects in some countries that could be relevant for issuers.

EEA

There are no regulatory requirements applicable to an issuer for reserving, allocating and issuing virtual shares to the recipients, provided that the virtual shares are issued in the form and substance as explained above. Companies raising capital through the issue of equity or non-equity (e.g., debt) securities to the public are subject to prospectus registration and disclosure requirements under the EU Prospectus Regulation unless exemptions apply. Some countries within the EEA have established domestic requirements for small-scale securities offerings falling outside the scope of the Prospectus Regulation (e.g., Estonia Latvia, Lithuania, Finland). None of these requirements apply to issuers as virtual shares are not transferable and issuers are actually not raising funds from the contributors / recipients. As no funds are raised and money paid, virtual shares also do not qualify as e-money (as defined in the respective domestic laws) and issuers do not undertake other activities in relation to virtual shares that would qualify them as e-money institutions.

Regulations requiring authorisation for the provision of investment or virtual currency services normally do not apply to the issuers who arrange the issue of financial instruments or virtual currencies for their own purposes. Virtual shares are issued by issuers themselves in connection with their commercial or professional activities.

Domestic laws and regulations of issuers’ home countries regarding international financial sanctions apply to the issuers as they do for any other person in the respective country. Should the characteristics or the terms of the virtual shares or the issuer’s activities change (e.g., issuer intends to raise capital through the issue of virtual shares or they transferable) the regulatory implications on the issuers need to be re-assessed under the Applicable Laws.

United Kingdom

Virtual shares

The virtual shares in question are likely to be deemed shares or instruments giving entitlements to investments and therefore considered securities by the FCA, however, so long as the issuer is the only entity performing actions in connection with the virtual shares then it is likely that the issuer will not be undertaking any activities that are regulated in the UK when it issues the virtual shares. This is because there are various exemptions that apply where a body corporate issues its own shares or share warrants. Furthermore, there is no requirement to publish a prospectus as long as the virtual shares are non-transferable.

If it becomes possible to decouple the virtual share from the issuer (for example, if the recipient can exchange their virtual share for (an actual) shares in the issuer and those shares are transferable) then the activities of the issuer may be subject to UK financial services regulation as the issuer may be issuing transferable securities to the public without having first published a prospectus. Furthermore, if the characteristics of the virtual shares change then the activities of the issuer may fall within the UK regulatory perimeter.

Utility instruments (tokens)

Assuming that some of the instruments registered through KOOS platform may become registered on blockchain and these could qualify as utility tokens, we also analyse the regulatory approach towards such instruments. The FCA Guidance on Cryptoassets identifies utility tokens as a form of tokens that are not regulated with the result that an issuer would not have to be FCA authorised and would not require an approved prospectus. The FCA Guidance defines a utility token as a token that provides the holder with access to a current or prospective service or product and often grant rights similar to pre-payment vouchers. This is not an absolute definition and it is clear that virtual shares or other instruments under the issuer’s program with similar characteristics could be treated as utility tokens.

The issuer is also not required to apply for FCA supervision under money laundering and terrorist financing prevention regulation (including due diligence and KYC requirements) when issuing the utility instruments because virtual shares or other instruments are not secured using cryptographic technology and therefore are not ‘cryptoassets’ under the Applicable Laws. The fact that the issuers may request KOOS to store backup copies of the register at a certain interval using distributed ledger technology (DLT) does not change the above conclusion. Furthermore, only entities that operate a cryptoasset exchange or safeguard cryptoassets (or private keys) on behalf of others by way of business in the UK are required to apply for FCA supervision and the issuers here are not carrying out either of these activities by way of business.

Moreover, on the current definitions, the rules on “financial promotions” which require an issuer to appoint an FCA authorised firm to approve any marketing materials do not apply to the utility tokens. (Exclusions from the requirement apply virtual shares because any promotion would be a promotion about the issuer’s own instruments). It is expected that, in early 2024, the UK’s financial promotions rules will be expanded to cover almost all cryptoassets apart from non-fungible tokens and mean that nobody will be able to promote such cryptoassets in the UK without appropriate authorisation from the FCA.

Supporting materials

The reward program and virtual shares often entail the following characteristics:

• the promise given to the contributors may have substantial value in the future
• the promise may form a significant liability for the company at the time of pay-out, exceeding potentially the budgeted amounts for that period
• the promise is a long-term commitment which you may not be able to unilaterally terminate

Consequently, the granting of such rights to contributors falls probably outside your ordinary course of business, and you will need to clearly communicate the plan to different stakeholders. Depending on your corporate structure and documentation, you may need to:

• receive a consent by your Board of Directors or the Supervisory Council
• receive a majority shareholders’ / investors’ consent under your Shareholders’ Agreement

KOOS has prepared some sample email and resolution texts that you may find helpful in preparing your own communication and decisions. Please note that these are just general examples and do not take into account your program details, your corporate structure, practice or documentation. Feel free to adjust these texts accordingly.

Sample email text to the Board members

Dear Board,

We want to build a community incentive scheme together with KOOS. Our goal is to motivate our community to do positive things for the company (referrals and customer service), and in return for their productivity we will provide them with rewards and participation in our future success.

The plan is to use virtual shares and in the first phase we would like to offer 1000 virtual shares with the assumed current value of 10 EUR each. This 10 000 EUR from our current 55MEUR valuation is 0.018%, but we won't be giving them shares. Instead, we promise to make payment to them if dividends are distributed to our shareholders and share the corresponding value or proceeds with them in the event of an acquisition or an IPO and if the company value is more than 100 MEUR. If we don't make dividend payments or reach our defined business goals such as 100MEUR valuation, no payments are made. This is only one example how this scheme could work. In legal terms, those members of our community who earn virtual shares will not become our direct or indirect shareholders. We don’t expect them to pay in any money as an investment and they won’t have a say in our shareholders’ meetings. The virtual shares they earn give them the right to participate in the financial return as we have defined it. This will be a legal promise and contractual obligation, and we ourselves will design the conditions for this and that contract is clearly communicated in the KOOS user experience.

Whichever way we would like to thank and engage our community. KOOS will assist us in setting up the program, granting virtual shares and maintaining the register of the persons we grant virtual shares. In that regard, KOOS is a Saas software solution being used by other businesses like ours.

KOOS proposes to meet with us to think through the specific terms of our virtual share and tie these to our short and longer term KPIs.

Sample email text to the Shareholders / Investors

Dear Shareholders/Investors,

We have decided to launch a community reward program together with KOOS. Our goal is to motivate our community to do positive things for the company (referrals and customer service), and in return for their productivity we will provide them with rewards and participation in our future success.

The reward program will have the following characteristics:

• PROMISE: ...
• REWARDED ACTIVITY: what activity is rewarded by the Company
• VALUE SHARED: a total value corresponding to XYZ shares (= ...% of the total share capital at time of launch of the program) will be distributed
• PERIOD: 01.01.2023 – DD.MM.YYYY
• TRIGGER EVENT: the sale of 100% of the shares in the company / IPO / Merger / valuation of EUR XYZ is reached

The rewards will be issued and recorded as virtual shares (not as actual shares of the company). Given that the future value of the promise and virtual shares is unknown at the moment, but it may potentially become a substantial liability for the company, we seek for you approval to launch the program. Please find attached the consent form / resolution text which we ask you to look through, make your decision and return the signed consent / resolution.

The approval is provided if at least XY% of the Shareholders/Investors provides their consent / vote in favour of the proposed resolution. /instructions for signing/providing the consent and returning the decision file/email/

Should you have any questions, we will be happy to share more information and explain the details of the program.

Sample texts for shareholders' resolution or investors' consent

NOTE: This text should be seen as a starting point only and should be tailored to meet specific circumstances, considering, among others, the provisions of the articles of association (or similar corporate documents) and shareholders’ agreements (and similar agreements) applicable to the company and its shareholders as well as the provisions of applicable law. The company should consult with lawyers before using this template. NOTE: Do not forget to enclose the reward program related documents to the meeting materials (e.g., the Terms of Virtual Shares, etc.)

RESOLUTIONS

1. The shareholders / Investor Majority of insert the name of the Company, incorporated under the laws of insert with registration code/identity number insert (the “Company”) hereby approve the grant and/or issuance by the Company of up to insert number virtual shares that grant their holders the rights and/or benefits set out in the attached document (the “Virtual Shares”). The shareholders / Investor Majority hereby also expressly authorise the Company to perform all obligations and liabilities arising from such Virtual Shares.
2. By signing and/or voting for these resolutions each shareholder / Investor of the Company waives unconditionally and irrevocably any and all pre-emptive rights, rights of first offer, anti-dilution rights and other rights of whatsoever nature which he/she/it may have under any agreement, including shareholders’ agreement, articles of association and/or any applicable laws with respect to the Virtual Shares and/or any securities, instruments, assets and/or rights issued, transferred and/or granted under the Virtual Shares.
3. By signing and/or voting for these resolutions each shareholder / Investor of the Company also undertakes to take any and all further actions that may be requested by the Company to fulfil any and all obligations arising from Virtual Shares, including, without limitation, adopt further shareholders’ resolutions, sign waivers of rights etc.
4. The approvals in these resolutions constitute approvals for all purposes including for the purposes, and under the terms of, any agreement, including any shareholders’ agreement of the Company and/or the articles of association of the Company and under any other documents which may be applicable to any of the shareholders / Investors of the Company.

Privacy and GDPR guide

In order to provide its services and enable issuers to reserve and issue virtual shares to recipients, both the issuer and KOOS need to process certain personal data concerning these persons. In this section we explain the main data processing related obligations that apply on the issuer and KOOS on the basis of the GDPR. Please note that depending on the specific jurisdiction where the services are used, additional local data processing laws and regulations may apply.

1. Key definitions

Before defining the data processing roles and reviewing main obligations related to personal data processing, let’s remind some important privacy related terms.

• Personal data means any information that relates to an identified or identifiable individual, this includes also the personal email address or a mobile phone number of the person.
• Data subject means any individual person who can be identified, directly or indirectly, via an identifier such as a name, an ID number, etc. In the context of the KOOS services, the data subject typically means the recipient for whom virtual shares are reserved or issued, respectively.
• Processing means any operation that is done on personal data, such as collection, transfer, retention, deletion, etc.
• Controller means the person who determines the purposes and means of the processing of personal data.
• Processor means the person who processes personal data on behalf of the controller.

2. Data processing roles

As explained in other sections of this manual, the legal relationship between the issuer and the recipient is created through terms of virtual shares, as agreed between them. Before the terms of virtual shares are agreed, the issuer may reserve virtual shares for its community members which they can collect by agreeing to the terms of virtual shares and becoming a recipient. KOOS is not a party to this legal relationship. The issuer solely and independently determines the conditions and means for reserving and issuing virtual shares. The issuer also decides what personal data and for what purposes is needed for reserving and issuing the virtual shares and maintaining the register of the virtual shares. This means that the issuer is data controller in the context of processing the recipient’s personal data for the purposes of reserving and issuing the virtual shares, and maintaining the register.

If the issuer has decided to use KOOS platform for registering the virtual shares issued to the recipients, KOOS acts as a data processor for the issuer.

3. Controller obligations and privacy notice

You as the controller are responsible for ensuring that the personal data processing complies with the GDPR and other applicable data processing laws. The controller shall ensure that the data processing complies with data processing principles, there is a legal basis for data processing, etc.

One important obligation of the controller is to provide data subjects with transparent and clear information on how their personal data is processed. In the context of using KOOS.io application and service, this means that the issuer should amend its privacy notice (or adopt entirely new privacy notice, if this is preferred) where the issuer explains how the personal data of the recipients is processed in the context of the virtual share program through KOOS. The privacy notice should be drafted being guided by the Articles 13 and 14 of the GDPR (if EU law applies) and include, in particular, the following information:

• details of the controller:

your business name, company registration code, address, email address;

• purposes for personal data processing and legal basis for personal data processing:

to enable participation in the virtual share program, keeping the register of virtual shares and to perform the terms of virtual shares as entered between you and the data subject. In order to carry out the virtual share program, you will transfer certain recipients’ personal data to KOOS as the data processor and request KOOS to collect certain personal data from them on your behalf. The legal basis for such personal data processing is therefore GDPR Article 6 (1) (b) (performance of the contract);

• the recipient or categories of the recipients of the personal data:

Programmable Equity OÜ (registry code 16320994, hereinafter “KOOS”) who acts as a data processor to you and provides software and technology at https://www.koos.io to reserve and register virtual shares;

• data retention period:

data retention period applied by you, which is presumably the term of the terms of virtual shares, i.e. contract entered between you and the data subject, plus appropriate additional period after the end of the contract (for example, you may be entitled to retain the personal data based on your legitimate interest under GDPR Article 6 (1) (f) until the end of the relevant limitation periods pursuant to applicable law related to the contract with data subject);

• data subject’s rights:

overview of data subject rights pursuant to GDPR Chapter III, including right of access, right to rectification, right to erasure, right to restriction of processing, right to data portability, right to object, right to lodge a complaint at supervisory authority.

The following types of personal data of the recipients are usually processed as part of the virtual share program:

• contact details: e-mail address; phone number, first and last name and number of reserved or issued virtual shares and reason for issuing
• identity data: full name; date of birth or personal identification code, address details (country of residence; city or county, municipality; street, house and apartment number and postal code); customer reference number; identity document number and other document details; and other personal information required for identification or verification purposes. In case of a legal person, information about the representative - first and last name, title of the representative, the date of birth or personal identification code, and identity document number and other document details
• service data: data on reserved or registered virtual shares, number of virtual shares, transfers of virtual shares, value of virtual shares, other relevant information and statistics
• payment data: payment account details and payment amount.

4. Processor obligations and data processing agreement

The processor may process personal data only in line with the instructions of the controller. Pursuant to GDPR Article 28, where the controller uses the processor, the processing shall be carried out on the basis of the data processing contract entered between the controller and the processor.

Being guided on the above, the issuer as the controller and KOOS as the processor have entered a data processing agreement, whereby the issuer authorises KOOS to perform certain data processing operations and KOOS grants to the issuer relevant assurances regarding data processing. Data processing agreement between the issuer and KOOS is entered as appendix to the Terms of Service for Issuers and is accessible here: https://koos.io/legal/terms-of-service-for-token-issuers.