D. Management of Equity Interests in Start-up Companies
1. Introduction. In the course of events a research university may be presented with new and varied opportunities to fulfill its mission to transfer the results of its research to the public. In the area of intellectual property advances, such opportunities may take the form of patents and copyrights and their transfer to external entities through research and development ("R&D") agreements, licenses, and sometimes new ventures known as "start-up" or "spin-out" companies.
This policy pertains to the decision making processes required during consideration of a new start-up company based on intellectual property held by the University; the transfer of intellectual property ownership to such a company in exchange for equity value; interactions with start-up companies during their formative phases; and finally, the decision by the University to divest itself of equity holdings in such companies.
2. Policy Statement. New start-up companies may be formed by university faculty/staff inventors, members of the UNH administration, or by an independent party in consultation and agreement with the University. Resulting conflicts of interest and commitment presented to the faculty/staff inventor will be managed through stringent application of the USNH and UNH policies on conflict of interest. An oversight committee, appointed by the UNH President, will make business decisions regarding this technology transfer process. The oversight committee will also make recommendations to the UNH President regarding the timing of divestiture. Divestiture will occur when the earlier of the following occurs: a) the earliest date on or following the initial public offering (IPO) date in which the trading of the equity is not restricted by law or underwriting agreement; or b) the date that the company is acquired through merger, acquisition, or other tendered offer for UNH equity. Distribution of divestiture proceeds will follow the UNH Intellectual Property Policy.
3. Administrative Infrastructure and Processes. Exhibit A depicts the sequence of events and decision criteria leading to a recommendation from the UNH Office of Intellectual Property Management (OIPM) to the UNH Vice President for Research and Public Service to form a new company based upon intellectual property held by the University. Any such recommendation will be based upon a carefully considered judgment that formation of a start-up company will provide the highest public benefit and the most timely transfer of the technology. Because a start-up company’s survival is tied to the development of the licensed technology, its effort is focused on that technology. As a result, a start-up company may represent the best opportunity for the development of the technology.
Receiving such a recommendation, the UNH Vice President for Research and Public Service will convene the Oversight Committee for Start-up Companies.
The Oversight Committee is a standing committee of the University comprised of the UNH Provost, the Vice President for Finance and Administration, the Vice President for Research and Public Service, and the Dean of the Whittemore School of Business and Economics; with the Director, OIPM, and the USNH General Counsel serving in advisory roles. The Committee will seek advice and counsel from the external community as appropriate.
The Oversight Committee will have responsibility for business decisions focused on promoting the success of the venture, and, with the relevant dean or director, personnel-related decisions designed to manage the likely conflicts of interest and commitment presented to the inventor. The UNH Policy on Financial Conflict of Interest in Research (UNH II.D) and the USNH Policy on Conflict of Interest (USY.V.D.7.1) shall apply to the relationship between the faculty/staff inventor, the University, and the potential new business venture, and all other aspects of this project, as set forth in those policies.
The Oversight Committee will use the same criteria depicted in Exhibit A to confirm the decision to license the technology to a start-up company. Following this review a recommendation will be made to the UNH President who will authorize the next appropriate action.
4. Equity Received When Licensing Technology. Equity that represents a fair valuation of the technology may be accepted as a substitute for cash value when licensing UNH technologies. Equity serves as compensation to UNH when the start-up company has limited cash. The equity is viewed as a reasonable business solution to enhance the overall financial arrangement - acceptable to the company and its investors, while providing an opportunity for UNH to increase its potential return. The University's ownership percentage in the start-up company will be negotiated by the Director, OIPM, as directed by the Oversight Committee. The faculty/staff inventor may also be permitted to hold a separate equity position in a start-up venture, as recommended by the Oversight Committee and guided by the USNH/UNH policies on conflict of interest. Inventor(s) are responsible for all financial, tax, and legal consequences related to the equity they receive.
The equity will be held by the USNH Treasurer.
5. Interactions with Start-up Company. UNH may hold a voting or non-voting membership on the start-up company's board of directors, as recommended by the Oversight Committee and agreed to by the company. Criteria for this decision will include the University's percentage of equity ownership and the relationship of the technology to the University's strategic directions. The faculty/staff inventor may serve as an officer, board member, or employee of the start-up company, as recommended by the Oversight Committee and under stringent adherence to the USNH/UNH conflict of interest policies.
6. The Divestiture and Sale of Equity. UNH will strive to maximize its potential return on the technology. Liquidation of stock will be recommended to the UNH President by the Oversight Committee at the earlier of: a) the earliest date on or following the initial public offering date in which the trading of the equity is not restricted by law or underwriting agreement; or b) the date that the company is acquired through merger, acquisition, or other tendered offer for UNH equity.
7. Distribution of the Proceeds of Divestiture. When stock in the start-up company is sold, the proceeds of the sale will be distributed according to the royalty sharing guidelines in the UNH Intellectual Property Policy (formerly VI-B-2.1). Before this distribution occurs, UNH will recover all costs directly associated with development of the technology, including patent protection, prosecution, and commercialization.