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Masaryk University Instruction No. 3/2018
The Founding and Operation of Masaryk University Spin-off
Companies
(in the version effective from 1 April 2018)
In accordance with Art. 15 of the Organisational Regulations of Masaryk University, I
hereby issue this Instruction:
Part One
Introductory Provisions
Article 1
General Conditions
The purpose of this Instruction is to support the transfer of technology and knowledge at
Masaryk University in order to enable and support the emergence of spin-off companies
(hereinafter referred to as "spin-offs") as a form of the practical utilisation of intellectual
property originating at Masaryk University and to regulate how intellectual property is
dealt with after the founding of the spin-off.
Article 2
Definition of the Term Spin-off
(1) A spin-off is a business founded:
a) directly by Masaryk University,
b) by another entity controlled by Masaryk University pursuant to Section 74 et seq.
of Act No. 90/2012 Coll., on Business Companies and Cooperatives (Business
Corporations Act), as later amended (hereinafter the “Business Corporations Act”),
c) a person who was an employee of Masaryk University at the date of establishment
of this company, or
d) by another entity controlled by an employee of Masaryk University in accordance
with business groupings as referred to in Section 71 et seq. of the Business
Corporations Act,
in connection with the use of the intellectual property of Masaryk University under
the Intellectual Property Directive at Masaryk University.
(2) Only public companies, limited partnerships, limited liability companies, public
limited companies, European companies or European economic interest groups
(Section 1, paragraph 2 of the Business Corporations Act) based in the Czech
Republic and established under the laws of the Czech Republic can be spin-offs.
(3) Masaryk University spin-offs are spin-offs that were established by Masaryk
University or an entity controlled by Masaryk University in connection with the use
of intellectual property of Masaryk University and in which Masaryk University or an
entity controlled by Masaryk University continues to own (a business) interest;
spin-offs with the participation of Masaryk University cannot be public limited
companies and limited partnerships, as stated in the second sentence of Section
20, paragraph 3 of Act No. 111/1998 Coll., on Universities and Amending and
Supplementing Other Regulations (on universities), as later amended (hereinafter
referred to as the “Higher Education Act”).
(4) Spin-offs without the participation of Masaryk University are those spin-offs
established by a person who was an employee of Masaryk University on the date of
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incorporation of this company or another entity controlled by an employee of
Masaryk University in connection with the use of intellectual property of Masaryk
University.
Article 3
Jurisdiction
The MU Technology Transfer Office (TTO) is a specialised workplace for the management,
protection and use of intellectual property and related technology and knowledge
transfer, cooperation with the application sphere and the establishment of spin-off
companies.
Part Two
Spin-offs with the Participation of Masaryk University
Article 4
Proposal for Founding a Spin-off with the Participation of Masaryk University
(1) A proposal to establish a spin-off with the participation of Masaryk University,
including attachments (hereinafter referred to as the “proposal”) may only be
submitted in writing. The TTO director shall reject a petition submitted other than in
writing.
(2) The proposer may be the Bursar, the head of an economic unit of Masaryk
University or another employee of Masaryk University. If another person submits
the proposal, the TTO director shall reject the proposal.
(3) If an employee of Masaryk University submits a proposal, he/she must enclose the
opinion of the head of the economic unit of Masaryk University to which the
employee belongs. This opinion shall also include a description of the resolution of
the potential conflict of interest resulting from the potential spin-off of the
proposer.
(4) The proposal shall include in particular:
a) specification of reasons, purposes, benefits and goals of establishing a spin-off
with the participation of Masaryk University,
b) specification of the material and intangible benefits that Masaryk University can
gain from such spin-offs,
c) a proposal for a founding legal act establishing a spin-off with the participation of
Masaryk University,
d) proposal of the ownership structure of spin-off with the participation of Masaryk
University, i.e. proposal of the amount of deposits and shares of individual
founders, including an assessment of the return on investment. Masaryk
University is not authorised to invest into a company or cooperative state-owned
real estate acquired by public higher education institutions provided with a
contribution pursuant to Section 18, paragraph 3 of the Higher Education Act and
a subsidy pursuant to Section 18, paragraph 4 of the Higher Education Act
(Section 20, paragraph 3, third sentence, of the Higher Education Act),
e) proposal of the personnel representation of Masaryk University in spin-off bodies
with the participation of Masaryk University, with the obligation to inform about
spin-off activities in justified cases and in advance,
f) analysis of the legal and economic implications of Masaryk University's
participation in a spin-off with a share held by Masaryk University (including the
duties of persons representing Masaryk University in spin-off bodies with a share
held by Masaryk University),
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g) a proposal to modify contractual relations between Masaryk University and a spinoff
with a share held by Masaryk University,
h) a business plan,
i) a management audit,
j) examination of the integrity and potential conflicts of interest and interconnection
of individual partners or participants in a legal entity.
k) if the spin-off with the participation of Masaryk University is to be a joint-stock
company, the method of subscription of shares, their form and type, the internal
structure of the company (monistic or dualistic) as well as the justification of such
a system, information on the management and administration code of the
company (a comparison for example of the Corporate Governance Code based on
OECD principles) which is mandatory for spin-offs and information on where to
consult the code; where appropriate, information that the spin-off will not comply
with a provision of such a code or with any code, including appropriate
justification,
l) identification of persons on the part of the proposer authorised to establish a spin-
off.
(5) The business plan, the structure of which is attached to Appendix No. 1 to this
Instruction, includes in particular:
a) an executive summary,
b) a project description
c) analysis,
d) a summary - SWOT
e) a design part,
f) financing,
g) investment.
h) identification of success factors, risk minimisation measures.
(6) The business plan may contain other possible documents and documents
supporting the plan.
Article 5
Consideration of the Proposal
(1) The TTO will verify that the proposal contains all the required elements.
(2) The TTO director shall invite the proposer to correct or supplement a proposal,
which does not contain all the required particulars, or which is unintelligible or
indeterminate, in accordance with the alleged deficiencies stated in the call of the
TTO director. The TTO director shall set a deadline appropriate to the deficiencies
allegedly needing to be corrected or supplemented.
(3) If, despite a request from the TTO director, the proposal is not properly corrected
or completed, the TTO director shall reject the proposal. The proposer must be
advised by the TTO director of these consequences in the call.
(4) The TTO director shall submit the proposal containing all the requisites to the Legal
Office as well as the Accountancy Office of the Rector’s Office of Masaryk
University, for them to express their opinion on the proposal, in particular pursuant
to Appendix No. 3 to the Statutes of Masaryk University. He/she shall set a time
limit for each of these departments.
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Article 6
Decision on the Proposal
(1) The TTO director, taking into account the observations of the Legal Office and the
Accountancy Office of the Rector’s Office of Masaryk University, shall decide on the
proposal after receipt of such observations or after expiry of the time limit(s) for
the observations; such a decision by the TTO director on establishment of a spin-off
will be:
a) recommended
b) recommended with changes, or
c) not recommended.
(2) The TTO director is not bound by the opinions of the Legal Office and the
Accountancy Office of the Rector’s Office of Masaryk University when deciding on
the proposal. The justification shall always form part of the decision on the proposal
pursuant to Article 6, paragraph 1, and may also include the justification of any
inconsistency with the statements of the Legal Office and the Accountancy Office of
the Rector’s Office of Masaryk University or the steps necessary to deal with
recommended changes.
(3) The decision ends the discussion of the proposal to establish a spin-off with a share
held by Masaryk University.
Article 7
Confidentiality of Information
(1) All information relating to the proposal and the existence of such a proposal is
confidential.
(2) The persons concerned are obliged to maintain the confidentiality of confidential
information.
Article 8
Deciding on the Founding of a Spin-off with a Share Held by Masaryk University
(1) If the TTO director recommends the establishment of a spin-off, or if he/she
recommends its establishment with changes pursuant to Art. 6, paragraph 1, letter
b), the TTO director shall submit a proposal to establish this spin-off (hereinafter
referred to as the “TTO director's proposal”) to the Rector of Masaryk University in
accordance with Appendix No. 3 to the Statutes of Masaryk University.
(2) The proposal of the TTO director consists of the proposal, the opinion of the Legal
Office and the Accountancy Office of the Rector’s Office of Masaryk University, the
decision on the proposal (including any reservations of the TTO director) according
to Art. 6 et seq. as applicable. The proposal of the TTO director must also contain
particulars according to Appendix No. 3 to the Statutes of Masaryk University, if
they are not part of the proposal.
(3) A proposal from the TTO director with which the Rector of Masaryk University
agrees, is submitted by the Rector for an opinion to the Academic Senate of
Masaryk University according to Appendix No. 3 to the Statute of Masaryk
University.
(4) Following the statement of the Academic Senate of Masaryk University, the Rector
submits the proposal of the TTO director together with the statement of the
Academic Senate to the Board of Trustees of Masaryk University.
(5) The Board of Trustees of Masaryk University is obliged to notify the Ministry of
Education, Youth and Sports within seven days of its issuance of prior written
consent to the legal action by which Masaryk University intends to establish a spinoff
and to make monetary and non-monetary deposits into this spin-off (Section 15,
paragraph 6 of the Higher Education Act).
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(6) The Rector of Masaryk University decides on the establishment of a spin-off,
changes to its form and on monetary or non-monetary deposits into this spin-off
after the prior written consent of the Board of Trustees of Masaryk University and
after notification to the Ministry of Education, Youth and Sports in accordance with
Appendix No. 3 to the Statutes of Masaryk University.
Part Three
Spin-offs without the Participation of Masaryk University
Article 9
Spin-offs without the Participation of Masaryk University
(1) If there is an urgent interest in this, the TTO director decides whether or not a
company is a spin-off without a share held by Masaryk University.
(2) In doing so, the TTO director shall take particular account of:
a) whether the company in question was founded by a person who was an employee
of Masaryk University or another entity controlled by an employee of Masaryk
University at the date of incorporation of this company;
b) whether the company in question was established in connection with the
exploitation of intellectual property of Masaryk University.
(3) The decision must specify how the intellectual property of Masaryk University will
be used (pursuant to the Intellectual Property Directive at Masaryk University) for
future use within the given company for the benefit of Masaryk University.
Part Four
Operation of the Spin-off
Article 10
Operation of the Spin-off
(1) In order to ensure the compliance of spin-offs with a share held by Masaryk
University with the regulations of Masaryk University and in a manner not contrary
to its statutes, Masaryk University must, through the personal representation of
Masaryk University in spin-off bodies with a share held by Masaryk University in
accordance with Art 4, paragraph 4, letter e) the possibility to coordinate and
control such spin-off meetings, with an emphasis on the management of the
intellectual property of Masaryk University (Article 11), also in the event of a vote;
the specific form is always given in the proposal.
(2) In justified cases, especially in cases of violation of the intellectual property of
Masaryk University (Art. 11) or in cases of acts against good morals damaging the
good name and reputation of Masaryk University, but also in cases of breach of
general duties in the spin-off, the TTO director shall decide, after a prior written
request to remove an undesirable condition, or after expiry of the deadline for
removal of such an undesirable condition, that:
a) in the case of spin-offs with a share held by Masaryk University, to initiate
negotiations aimed at getting rid of the share of Masaryk University in the given
spin-off and withdrawing the possibility of disposing of the intellectual property of
Masaryk University,
b) in the case of a spin-off without a share held by Masaryk University, it will remove
the status of spin-off, including the possibility of disposing of the intellectual
property of Masaryk University.
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(3) The request for the removal of an undesirable situation shall include, in particular, a
statement of reasons and specification of the infringement of the intellectual
property of Masaryk University, as well as a reasonable period for such removal.
(4) The decision must always state how the intellectual property of Masaryk University
will be used for the future management of this intellectual property within the given
company, with an emphasis on licensing the intellectual property of Masaryk
University.
Part Five
Management of the Intellectual Property of Masaryk University
Article 11
Management of the intellectual property of Masaryk University
(1) The management of the intellectual property of Masaryk University means in
particular its use in accordance with the Intellectual Property Directive at Masaryk
University, and in accordance with the measures of Masaryk University to ensure
the sustainability of outputs in the field of intellectual property.
(2) In justified cases, the TTO will support the dissemination of intellectual property of
Masaryk University through an individual approach to newly-established and
existing spin-offs.
Part Six
Interim and Final Provisions
Article 12
Interim Provisions
(1) This Instruction governs rights and obligations arising from the date of its entry into
force; this Instruction does not create any rights and obligations for the period
before its entry into force.
(2) Relations established before the date of entry into force of this Instruction, as well
as the rights and obligations arising therefrom, shall be governed by existing
regulations.
(3) This Instruction also applies to proposals submitted before this Instruction becomes
effective. Negotiations that have occurred before this Instruction becomes effective
shall be maintained.
(4) By prior agreement, the TTO will assist proposers in negotiations related to the
establishment of spin-offs as well as their management.
(5) The TTO is responsible for checking compliance, interpreting individual provisions
and updating this Instruction.
Article 13
Final Provisions
(1) This Instruction cancels the TTO Methodological Instruction - Establishment of Spinoff
Companies by Masaryk University dated 1/9/2014.
(2) I authorise the TTO director to interpret the various provisions of this directive.
(3) This Instruction belongs to the area of methodological management “Cooperation
with the application sphere and establishment of spin-off companies”.
(4) Compliance checks are performed by the TTO director.
(5) This Instruction comes into force upon signature.
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(6) This Instruction comes into effect on 1 April 2018.
Appendices: No. 1 - Structure of the Business Plan
Brno, 14 March 2018 Marta Valešová
Bursar
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Appendix No. 1
Structure of the Business plan
1. Executive summary
2. Project description
i. Description of the company product and its benefits
ii. Definition of customer segments
iii. Intellectual property protection
iv. Team
v. Definition of project objectives,
3. Analyses
i. Market
1. Individual segments - nature of customers, market potential and
development
2. Competitive products - occupied segments, price and quality
3. Strength of competitors
4. Essential factors for market entry in a given segment – legislation and
certification
ii. Suppliers
iii. Customers
iv. Production process and cost balance
v. Research and development - environmental factors, e.g. legal norms
4. Summary - SWOT
5. Design part
i. Identification of milestones - development of objectives
ii. Strategy
1. Products
2. Prices
3. Distribution
4. Promotion
5. People
6. Processes
6. Finance
i. Opening balance sheet as of the date of incorporation
ii. Costs
1. Before starting the project
2. During the project
3. Fixed
4. Variable
iii. Assumption of revenues
iv. Proposal (estimate) of Balance Sheet and Profit and Loss Statement always as
of 31/12 for a period of three years from the establishment of the company
(or until it becomes profitable)
v. Cash-flow projection
7. Investment
i. Required investment and its structure
ii. Pre-investment project valuation
iii. Return on investment, exit
8. Identification of success factors and risk minimisation measures