Consultant Service Agreement
PORTIONS OF THIS EXHIBIT IDENTIFIED BY [*****] HAVE BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE THE EXCLUDED INFORMATION IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.
THIS AGREEMENT WAS SIGNED ON 1st October 2019:
BETWEEN
Biophytis SA, a public limited company with a share capital of 1,783,803 euro, having its registered office at 00 xxxxxx xx x’Xxxxx, 00000 Xxxxx, registered with the Paris Trade and Companies Register under number 492 002 225 and represented by Xx Xxxxxxxxx Xxxxxxx, duly authorised for the purposes hereof (hereinafter the “Customer”);
AND
SUCCESSFUL LIFE SAS, a simplified joint stock company with a sole shareholder, with a share capital of 1,000 euro whose registered office is 00 Xxx Xxxxxxxx, registered with the Paris Trade and Companies Register under number 000 000 000, represented by Xx Xxxx Xxxxxxx, duly authorised for the purposes hereof (hereinafter the “Service Provider”).
The Customer and the Service Provider are hereinafter referred to collectively as the Parties and individually as a Party.
WHEREAS:
The Customer is a biotechnology company specialising in the research and development of drug candidates to treat diseases of ageing.
The drug candidates under development by the Customer concern (i) muscular dystrophy (Sarconeos and BIO103) and (ii) retinal degeneration (Macuneos and BIO203).
The Service Provider is a company that offers support and advisory services particularly in the pharmaceutical industry. In particular, the Service Provider has expertise in the medical, pharmaceutical field and specifically in the biology of ageing.
NOW THEREFORE, IT HAS BEEN AGREED AS FOLLOWS:
2 PURPOSE
Under this Contract, the Service Provider agrees to provide the Customer with the services of “Chairman of the Scientific Committee,” as well as scientific and strategic advice in particular (without this list being exhaustive):
· Chair the Biophytis Scientific Committee (SC):
· Prepare the meetings of the Scientific Committee (minimum of 4 meetings per year), set the agenda of the meetings, chair and host the meetings, prepare and share the minutes, reports and scientific opinions of the SC to the Board of Directors,
· Provide scientific support particularly in the biology of ageing and assistance in the strategic development of projects, participate if necessary in the Management Committee,
· Be at the disposal of the Customer’s General Management and its Board of Directors for any consideration about the company’s strategic development plan or its potential evolution.
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· Contribute to the publication target, particularly by participating in the drafting, proofreading and validation of scientific articles.
The composition, responsibilities and functioning of the Scientific Committee are set out in Appendix 1.
3 OBLIGATIONS OF THE SERVICE PROVIDER
The Service Provider undertakes to provide the Customer with the services agreed with the Customer’s Management, and more generally anything that may reasonably be requested from it with its status as “Chairman of the Scientific Committee.”
The Service Provider confirms and warrants that on the date of signature of the Contract, it is not bound by any obligation or prohibition having the purpose or effect of affecting in any way the formation or performance of this Contract. The Service Provider confirms and warrants that it is not aware of any circumstance likely to affect in any way the formation or performance of the Contract. This provision is essential and decisive for the Customer’s commitment.
The Service Provider warrants that it will provide the Services with professionalism, loyalty, punctuality and competence, in accordance with best practice. Specifically, the Service Provider undertakes to use all due diligence required for the proper performance of the Services and to allocate to the performance of said services the most appropriate material means, it being understood that it will be responsible for defining said means, without the Customer being able to interfere in any way whatsoever.
The Service Provider undertakes to act honestly and impartially towards the Customer throughout the term of the performance of the Contract.
The Service Provider confirms that it has taken out all necessary insurance policies in order to cover all the liabilities that may result, at its expense, from the conclusion and performance hereof.
Without prejudice to the provisions of Article 6, the Service Provider shall decide on the choice of personnel to be assigned to the tasks covered by this Contract.
Personnel may not receive any guidelines or instructions from the Customer. It shall remain subject to the sole authority of the Service Provider.
The Service Provider undertakes to employ qualified personnel with the skills necessary for the performance of the Contract.
It is specified, for any useful purpose, that the Service Provider may not use external consultants with a particular competence for the provision of one of the Services, as stipulated in the Article INTUITU PERSONAE.
The Service Provider shall remain solely liable for its authorised or non-authorised staff, employees, subcontractors. The Service Provider undertakes to comply with labour legislation and to be in good standing with the social and tax bodies.
The Service Provider will regularly report on the Services rendered to the Customer. This report may be carried out by any means, unless the Customer requests the Service Provider to carry out this report in writing.
4 OBLIGATIONS OF THE CUSTOMER
During the term of the Contract, taking into account the mobilisation required by the Service Provider’s performance hereof, the Customer undertakes to request the Service Provider’s Services at least six (6) full days per month.
During the term of the Contract, the Customer undertakes to provide the Service Provider with all the information and documents necessary to perform the Services and to keep it informed of all elements of any kind, essential for the proper performance of its mission.
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The Customer also undertakes, whenever the Services render it necessary or useful, to allow the Service Provider’s personnel free access to its premises and facilities and to make available to said personnel all means likely to facilitate their intervention, with said personnel having to comply with all provisions laid down by the Customer, in particular regarding access and movement on the premises, health and safety and confidentiality.
Finally, the Customer undertakes to remunerate the Service Provider under the conditions set out in the article REMUNERATION OF SERVICES. The parties expressly agree that this is an essential obligation of the contract.
5 TERMS FOR PROVISION OF SERVICES
The Provider undertakes to provide the Services six (6) full days per month, of which at least three (3) full days at the Customer’s premises.
The choice of working days will be determined at the request of the Customer according to its needs, provided that each request is sent to the Service Provider with reasonable notice.
The Service Provider may attend the meetings of the Customer’s Board of Directors, Management Team or Scientific Committee, when the Customer deems it necessary depending on the items on the agenda.
In the event that the Service Provider is called upon to attend one of the meetings of one of the Customer’s management bodies mentioned above, the Service Provider is bound to discretion with regard to confidential information as specified in Article 11.
As part of its Services and during the term of the Contract, the Customer will provide the Service Provider with (i) a xxxxxxxxx.xxx email address account and (ii) a telephone number.
It is specified that the Service Provider will use the title of “Chairman of the Scientific Committee” in its communication with third parties.
6 REMUNERATION OF SERVICES and REFUND OF FEES
In return for the Services, the Provider shall receive remuneration calculated as follows:
[****] ([****]) euro per day of work payable monthly according to the number of days worked in the month, up to a maximum of six days per month and an annual ceiling of [****] ([****]) euro.
The Customer undertakes to pay this remuneration to the Service Provider, upon presentation of the corresponding invoices, it being specified that the Service Provider will be remunerated on the basis of monthly invoices.
The costs incurred by the Provider in connection with the performance of the Services, including travel costs: hotel stays, catering, transport, and registration fees at professional congresses, will be reimbursed by the Customer upon presentation of receipts, it being agreed that any costs in excess of [****] ([****]) euro will require the Customer’s prior written consent.
7 INTUITU PERSONAE
In order to guarantee better quality and monitoring of the Services, the Service Provider undertakes, for the entire duration of the performance of the services, except in cases of force majeure, to personally perform the Services and in particular to ensure that Xx Xxxx Xxxxxxx is mainly responsible for the performance of the Services. It is therefore prohibited, except with the Customer’s written agreement derogating from this rule, from subcontracting all or part of the services incumbent upon it.
If the Service Provider is no longer able to perform the Services personally, the Contract shall be terminated automatically and with immediate effect.
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If the Service Provider’s employees were to intervene in the performance of the Services - object of the Contract - these employees should first be approved by the Customer and must act under the direct supervision of the Service Provider.
8 RULES APPLICABLE TO THE SERVICE PROVIDER’S PERSONNEL
The Services shall be provided by the Service Provider, at the Customer’s premises and with its equipment and at all locations required for the proper performance of the Services.
The Contract does not create any subordination relationship between the Customer, the Service Provider and the Service Provider’s personnel. The Service Provider shall therefore be solely responsible for the management of its personnel, which shall remain under its entire subordination. The Service Provider shall be solely responsible for the conclusion and termination of the employment contracts of its personnel and shall give them any useful guidelines and instructions.
As employer, the Service Provider shall take personal responsibility for the treatment, salaries, bonuses, social security contributions, paid leave, management and in general all the obligations incumbent on it with regard to its staff.
The Service Provider certifies that it has fulfilled all of the tax and social security obligations incumbent on it, and in particular those referred to in Articles L. 8221-3 and L. 8221-5 of the French Labour Code.
The Service Provider confirms and declares on its honour that the Services will be performed by employees employed in accordance with Articles L.3243-1, L. 3243-2, L.3243-4, L.1221-13, L.1221-15 and L.8251- 1 of the French Labour Code and in compliance with the provisions of Articles L.8221-1 and L.8221-2 of the same Code.
Each of the Parties states that it is registered with the Trade and Companies Register, as well as with the Union pour le Recouvrement des Cotisations de Sécurité Sociale et des Allocations Familiales (URSSAF, Union for the Collection of Social Security Contributions and Family Allocations).
The Service Provider undertakes to communicate to the Customer, on first request:
· on the one hand, a certificate of provision of social declarations and payment of contributions and social security contributions as per Article L.243-15 of the French Labour Code issued by the social protection body responsible for collecting taxes and contributions less than six months old. The Customer shall ensure the authenticity of this certificate with URSSAF.
· on the other hand, either an extract of its registration in the Trade and Companies Register (K or K bis), or an identification card proving its registration in the trade register.
In the absence of the aforementioned documents in 7.7, all other supporting documents provided for in Article D.8222-5 of the French Labour Code shall be provided to the Customer.
The Service Provider expressly and irrevocably undertakes to renew the communication of the aforementioned documents in the Article. The Service Provider undertakes to communicate to the Customer, on first request, every six months, until the end of this contract.
9 OBLIGATION OF BEST EFFORT
The Service Provider undertakes to perform the services provided under this Contract in accordance with best practice, it being specified that the obligations incumbent on the Service Provider are by mutual agreement considered as obligation of best effort.
10 SERVICE PROVIDER’S INDEPENDENCE
The Service Provider confirms that the Contract does not infringe or violate any commitment made by the latter, and guarantees the Customer against any action that may be brought against it on this basis.
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The Contract only creates relations between the Parties as independent contractors and cannot in any way be interpreted as creating an association or a company between them.
The Parties acknowledge that the Contract is not an adhesion contract as defined in paragraph 2 of Article 1110 of the French Civil Code, that is to say a contract whose general terms and conditions would have been excluded from negotiation.
The Parties declare that the provisions of the Contract were, in accordance with the mandatory provisions of Article 1104 of the French Civil Code, negotiated in good faith and that pursuant to Article 1112- 1 of the same Code, all information of which the importance is decisive for the consent of the other party has been disclosed, knowing that the breach of the duty of information could lead to its cancellation.
The Service Provider does not have, under the Contract, the power to enter into contract on behalf of the Customer or the power to bind it in any way to third parties. Consequently and in no way may the Customer be held liable for commitments made by the Service Provider on behalf of the Customer without the person legally responsible for the Customer or its duly authorised representatives being involved in these commitments.
11 NON-COMPETITION / NON-SOLICITATION
The Service Provider undertakes, throughout the term of this Contract and for a period of one (1) year from the expiry of this Contract, not to have any business relationships in any form whatsoever, directly or indirectly, in particular (i) by performing duties (employees, corporate officers, service providers or otherwise), or (ii) by holding interests regardless of the form and nature, including the holding of securities or loan claims in unlisted entities, or more than 1% of the capital of listed companies, with any company or business operating in any form whatsoever, any development or marketing activity of products competing with those of the Customer (the Customer’s products being defined as the drug candidates concerning muscular dystrophy (Sarconeos and BIO103) and retinal degeneration (Macuneos and BIO203).
During the same period, the Service Provider also undertakes not to solicit or draft on its behalf or on behalf of any entity it holds a majority stake in, directly or indirectly, any person who has exercised within twelve (12) months prior to the date of the offer to hire their activity on behalf of the Customer as an employee or consultant or subcontractor.
12 CONFIDENTIALITY
Definition of Confidential Information
12.1.1 For the purposes of this Article, the term “Confidential Information” means all financial, operational, technical or other information relating to the Customer which will be communicated to the Service Provider or of which it will become aware in connection with the provision of the Services, verbally or in writing or via any other medium; as well as the content of the Contract.
12.1.2. Confidential Information shall not include any information that:
· is already in the public domain at the time of its disclosure or has been made known to the public in any manner whatsoever and without any breach of the Contract;
· prior to its disclosure, was already known, held or used in any way by the Party to which such Confidential Information was disclosed and provided that the latter provides written evidence of such knowledge, holding or use;
· is independently developed by the Service Provider;
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· is disclosed with the Customer’s prior written approval; or
· must be disclosed following the decision of a court of competent jurisdiction or following any regulatory or legislative measure to the extent that the Service Provider notifies the Customer in writing and as soon as possible.
Confidentiality undertaking
The Service Provider undertakes:
· to maintain the confidential nature of the Confidential Information and to ensure the confidentiality of such information by its staff, its agents (social and contractual) and any subcontractors;
· to report to the Customer any incident that might cause the Confidential Information to lose its confidential nature;
· not to reproduce, in any form whatsoever, any Confidential Information without the prior written consent of the Customer;
· to implement the appropriate procedures and take all useful measures to avoid the disclosure or communication of Confidential Information to third parties, and the loss of media containing such information;
· immediately inform the Customer in the event of loss of media containing Confidential Information;
· to deliver to the Customer, upon expiry or termination of the Contract or at the first request of the latter, all media containing Confidential Information, including copies if they exist, still in its possession.
Term of the obligation
For any Confidential Information, the confidentiality period shall commence on the date of its transmission to the Service Provider, or on its creation by the Customer and shall end five (5) years after the expiration or termination of the Contract.
13 TERM AND TERMINATION
This Contract shall enter into force on 1st October 2019 and end on 30 September 2020. It may be renewed by written amendment.
Furthermore, in the event of a serious breach by one Party of one of the essential contractual obligations, particularly in the event of non-performance by one of the Parties of its obligations under this Contract, the other party may terminate the contract, without it being necessary to carry out any legal formality, by means of a simple registered letter with acknowledgement of receipt, one month after a formal notice has remained unheeded, and without prejudice to any action for damages.
14 TRANSFER
The Contract was negotiated and entered into by each of the Parties in consideration of the intuitu personae attached to the other Party. Consequently, the Contract may not, without the approval of the other Party, be the subject of a transfer to a third party or a company contribution.
Similarly, the Service Provider undertakes to perform the services personally and is not authorised, except with the written agreement of the Customer, derogating from this rule, to subcontract all or part of the services incumbent upon it.
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15 NOTICES
All notices relating to the Contract must be sent by registered letter with acknowledgement of receipt and shall take effect as soon as they are first presented by post.
Notices made hereunder shall be sent to the Parties as follows:
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To the Customer: |
For the attention of Xx Xxxxxxxxx Xxxxxxx 00 xxxxxx xx x’Xxxxx 00000 Xxxxx +33 (0)1 44 27 23 00 xxxxxxxxx.xxxxxxx@xxxxxxxxx.xxx |
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To the Service Provider: |
SUCCESSFUL LIFE SAS For the attention of Xx Xxxx Xxxxxxx 00 xxx Xxxxxxxx 00000 Xxxxx x00 (0)0 00 00 00 36 |
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xxxx.xxxxxxx@xxxxx.xxx |
or to such other address as the Parties shall have indicated in accordance with this Article.
16 OTHER PROVISIONS
The provisions contained in the Contract express the entire agreement between the Parties with respect to the Services. They shall prevail over those appearing on any document or communication, written or exchanged between the Parties, prior to the conclusion of the Contract.
Failure to exercise all or part of any of the rights resulting from the provisions of the Contract shall not constitute a waiver of the benefit of this right for the future or any other right resulting from the Contract.
The invalidity of any of the obligations arising from this Contract for any reason whatsoever shall in no way affect the validity of any other obligations arising from this Contract.
All provisions of this Contract are strictly binding. Any amendment to this Contract may only result from a written document signed by the Parties.
The Parties each waive the right to avail themselves of the provisions of Article 1195 of the French Civil Code which allow, if a change in circumstances unforeseeable at the time of the conclusion of the agreement was to render its performance excessively onerous, to request the renegotiation thereof.
17 APPLICABLE LAW AND JURISDICTION
Applicable law:
The Contract is subject to French law.
Jurisdiction:
Any dispute arising from the conclusion, interpretation, performance or non-performance, or the consequences of this Contract, shall be the jurisdiction of the courts within the jurisdiction of the Paris Court of Appeal.
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Done in Paris
In two copies
1st October 2019
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/s/ Xxxxxxxxx Xxxxxxx |
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/s/ Xxxxxxx Xxxx |
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SUCCESSFUL LIFE SAS | |
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Represented by Xx Xxxxxxxxx Xxxxxxx |
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Represented by Mr Xxxxxxx Xxxx |
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APPENDIX 1
Scientific Committee
· Composition
The Scientific Committee is composed of at least five (5) members appointed by the Board of Directors of the Company. The members of the Scientific Committee may or may not be directors or shareholders of the Company.
It is specified, where necessary, that no member of the Board of Directors exercising management duties within the Company may be a member of the Scientific Committee.
The Chairman of the Scientific Committee is appointed by the Board of Directors of the Company for the duration of their term of office as a member of the Committee.
The term of office of the members of the Scientific Committee is five (5) years ending at the first meeting of the Board of Directors held after the Annual Ordinary General Meeting called to approve the accounts.
The term of office of the members of the Scientific Committee is renewable.
Since 26 October 2017, the Scientific Committee has been composed of:
· Xxxx. Xxxx XXXXXXX, University Professor and Emeritus Professor at Sorbonne Université, Director of the Longevity Institute Xxxxxxx Xxxx, Chairman of the Scientific Committee;
· Prof. Xxxx-Xxxxx SAHEL, Ophthalmologist Doctor, Director of the Vision Institute;
· Xxxx. Xxxx XXXXXX, Emeritus Professor at Sorbonne Université, Scientific Director of the Company;
· Xxxx. Xxxxx XXX, Professor at Harvard Medical School, Unit Director of Massachusetts Eye and Ear, Co-Director of the Harvard Medical School Department of Ophthalmology and Director of the Macular Degeneration Unit in Massachusetts Eye and Ear;
· Xxxx. Xxxxx X. XXXXXXXX, Professor at the Xxxxxxxx School of Nutrition Science and Policy and Harvard Medical School; Director of Human Studies at Xxxx Xxxxx USDA Human Nutrition Research Center on Aging;
· Xxxx. Xxxxxx XXXX, Director of the Centre for Biomedical Research (BRC) of the Great Ormond Street Hospital for Children NHS Foundation Trust and the Institute of Child Health, University College London.
· Responsibilities
The Scientific Committee is responsible for assisting the Board of Directors in:
· the study of plans for the development of nutraceutical products or drug candidates, to formulate an opinion on their scientific or regulatory consistency;
· the analysis of the main scientific or clinical results, to participate in their interpretation and to formulate an opinion on the continuation, reorientation or termination of a research project at certain key stages;
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· the scientific evaluation of new research projects, prior to their submission if they are the subject of a grant application and/or before their actual start, to position the project in the global scientific and regulatory context and specify its innovative nature;
· the study of the main scientific-regulatory files prepared by the Company for advice and suggestions of possible additions/arrangements, before filing with the regulatory agencies (EFSA, EMA...).
Any decision relating to the implementation (or withdrawal) of a scientific research and development programme shall be subject to prior consultation with the Scientific Committee.
The Board of Directors or the Chairman of the Board of Directors may also decide to submit to it for opinion any other scientific matter or project, particularly relating to the research and development strategy pursued by the Company. In general, the Chairman of the Board of Directors and the Scientific Committee may exchange at any time in a social setting on any scientific issues that may arise.
· Operation
The Scientific Committee shall meet as often as it deems necessary and at least once (1) a year, upon notice from its Chairman. The Scientific Committee shall report on its mission to the Board of Directors and communicate to it its recommendations, views and opinions.
Notices shall be sent by any written means (including by email) with a notice period of five (5) days except in the event of an emergency. The Scientific Committee may also be convened verbally. If all members of the Scientific Committee are present or represented, meetings may be held without prior notice.
The Scientific Committee shall deliberate validly only if at least half of its members are present or participate by videoconference or telecommunication means or is represented. As an exception to the foregoing, in the event that the Scientific Committee is composed of only two (2) members, the Scientific Committee shall deliberate validly only if the two (2) members in question are present or participate by video conference or telecommunication means or are represented.
Decisions shall be taken by a majority of the members present or represented, the Chairman shall have the casting vote in the event of a tie.
Members may be represented by any other member of the Scientific Committee within the limit of two representation mandates per member.
The Scientific Committee shall report on its mission to the Board of Directors on the terms agreed with the latter. It shall also communicate with them its recommendations, suggestions and opinions.
A written record of each meeting shall be drawn up.
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