Exhibit 10.1


 



 

VENTURE LOAN AGREEMENT

 

By and between

 

Biophytis S.A.

 

as Issuer

 

and

 

Kreos Capital V (UK) Ltd.

 

As Subscriber

 

September 10th 2018

 


 





 











 

Table of contents

 

	
1.
    	
Definitions and   interpretation
    	
4
    
	
 
    	
 
    	
 
    
	
2.
    	
Bonds and Warrants   Issue
    	
7
    
	
 
    	
 
    	
 
    
	
3.
    	
Completion of issuance   of Tranche A
    	
7
    
	
 
    	
 
    	
 
    
	
4.
    	
Conditions Precedent to   the issuance of Tranche B, Tranche C and Tranche D
    	
8
    
	
 
    	
 
    	
 
    
	
5.
    	
Commitments
    	
8
    
	
 
    	
 
    	
 
    
	
6.
    	
Representations and   warranties
    	
11
    
	
 
    	
 
    	
 
    
	
7.
    	
Remedies and waivers
    	
13
    
	
 
    	
 
    	
 
    
	
8.
    	
Severability
    	
13
    
	
 
    	
 
    	
 
    
	
9.
    	
Notices
    	
13
    
	
 
    	
 
    	
 
    
	
10.
    	
Fees and expenses
    	
14
    
	
 
    	
 
    	
 
    
	
11.
    	
Law and jurisdiction
    	
15
    
	
 
    	
 
    	
 
    
	
Schedule   1
    	
16
    


 

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Venture loan agreement

 

This venture loan agreement (hereinafter referred to as the “Venture Loan Agreement”) is entered into on September 10th, 2018, by and between:

 

1.                            Biopthytis S.A., a limited company (société anonyme) incorporated under the laws of France, with a share capital of EUR 2,692,682.60 having its registered office at 14, avenue de l’Opéra — 75001 Paris, France, registered under single identification number 492 002 225 RCS Paris, listed on the Euronext Growth organized multilateral trading facility under ISIN code FR0012816825, represented by Mr. Stanislas Veillet, in his capacity of chief executive officer (Président Directeur Général),

 

(hereinafter referred to as the “Issuer” or the “Company”)

 

ON THE FIRST PART

 

AND

 

2.                            Kreos Capital V (UK) Limited, a private limited company incorporated under the laws of England, having its registered office at 5th Floor, 25-28 Old Burlington Street, London W1S 3AN, United Kingdom, registered under identification number 09728300, represented by Mr. Maurizio Petitbon, in his capacity of Director, duly authorised for the purposes hereof;

 

(hereinafter referred to as the “Subscriber” or “Kreos”)

 

ON THE SECOND PART

 

Issuer and Subscriber being hereinafter referred to individually as a “Party” and collectively as the “Parties”.

 

Whereas

 

(A)                     The Subscriber is a venture debt provider, the business of which consists in making investments in high technology and life science companies throughout Europe.

 

(B)                     The Issuer is a French société anonyme, created in 2006, specializing in creating drugs to treat degenerative illnesses associated with aging for which no treatment is available to date. Its most advanced programmes relate to sarcopenia (loss of muscle functionality) and age-related macular degeneration (AMD).

 

(C)                     In order to finance the development of the Issuer’s business in general, the Subscriber has agreed to subscribe to a Bonds Issue by the Issuer for a nominal amount of up to ten million euros (EUR 10,000,000.00) as per a term sheet dated December 21st, 2017 and signed on December 22nd, 2017 (the “Term Sheet”).

 

(D)                     In accordance with the Term Sheet, on February 2nd, 2018, the Issuer paid to the Subscriber an amount of EUR 35,000.00 plus VAT (the “Deposit”) to cover costs, fees and expenses including, without limitation, costs of due diligence and fees of lawyers, valuers and consultants.

 

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(E)                     On June 4th, 2018, the Issuer’s general meeting empowered, through its 8th resolution, the Issuer’s board of directors (conseil d’administration) to issue warrants giving access to the Issuer’s capital.

 

(F)                      On July 10 2018, the Issuer’s board of directors (conseil d’administration) empowered the chief executive officer (directeur general) of the Company to negotiate and enter into this Venture Loan Agreement and the related Issue Documents.

 

(G)                    The Parties have met to determine the terms and conditions of the transaction contemplated by the Term Sheet, which is the subject hereof.

 

NOW, THEREFORE, IT HAS BEEN AGREED AS FOLLOWS:

 

1.                            Definitions and interpretation

 

1.1                     In this Venture Loan Agreement, unless the context otherwise specifically provides, the following expressions shall have the following meanings:

 

	
Bonds
    	
 
    	
means the bonds (obligations within   the meaning assigned in article 213-5 of the French monetary and financial   Code) to be issued by the Issuer under the Bonds Issue;
    
	
 
    	
 
    	
 
    
	
Bonds Issue
    	
 
    	
means the issue of up to 10,000,000 Bonds carried   out pursuant to this Venture Loan Agreement in accordance with the Bonds   Issue Agreement;
    
	
 
    	
 
    	
 
    
	
Bonds Issue Agreement
    	
 
    	
means the bonds issue agreement entered into by the   Issuer and Subscriber in relation to the Bonds Issue and the Warrants as of   the date hereof;
    
	
 
    	
 
    	
 
    
	
Business Day
    	
 
    	
means a day (excepting Saturdays and Sundays) on   which banks operate in Paris;
    
	
 
    	
 
    	
 
    
	
Business Division Pledge   Agreement
    	
 
    	
means the pledge agreement entered into by the   Issuer and Subscriber as of the date hereof in relation to the pledged   business division as defined in article 3.2 of the Business Division Pledge   Agreement;
    
	
 
    	
 
    	
 
    
	
Completion Date
    	
 
    	
shall have the meaning set forth under section 3;
    
	
 
    	
 
    	
 
    
	
Deposit
    	
 
    	
shall have the meaning set forth in recital D of the   Preamble;
    
	
 
    	
 
    	
 
    
	
Drawdown Notice
    	
 
    	
shall have the meaning set forth in the Bonds Issue   Agreement;
    
	
 
    	
 
    	
 
    
	
Event of Default
    	
 
    	
shall have the meaning set forth in the Bonds Issue   Agreement;
    
	
 
    	
 
    	
 
    
	
Final Redemption Date
    	
 
    	
means the date on which all amounts due under the   Issue Documents have been unconditionally and irrevocably paid and discharged   in full;
    
	
 
    	
 
    	
 
    
	
Group
    	
 
    	
means the Issuer and any Subsidiary of the Issuer   from time to time;
    
	
 
    	
 
    	
 
    
	
Indebtedness
    	
 
    	
means (i) any outstanding amount to be repaid   pursuant to one or more credit facility agreements or the issue of bonds,   notes, debentures, loan stock or any similar instrument, and (ii) the   amount of any outstanding liability in respect of any guarantee for any of   the items referred to in paragraph (i), it being understood
    


 

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that any amount calculated under this definition may   only be counted once, even if an item may qualify under various paragraphs;   for the avoidance of doubt, any debt instruments issued as part of a variable   rate equity financing, including redeemable (or convertible) bonds with share   subscription warrants attached shall not be considered as Indebtedness;
    
	
 
    	
 
    	
 
    
	
Intellectual Property
    	
 
    	
means all subsisting intellectual property rights   owned by the Issuer (or Subsidiary) in any part of the world including   patents and rights of a similar nature, applications for patents and such   rights, divisions, prolongations, renewals, extensions, supplementary   protection certificates and continuations of such applications for patents,   registered and unregistered trademarks or trade names, registered and   unregistered service marks, registered and unregistered designs, utility   models (in each case for their full period and all extensions and renewals of   them), applications for any of them and the right to apply for any of them in   any part of the world, inventions, processes, software, formulae, technology   (whether patentable or not) data, specifications, business or trade secrets,   technical information, confidential information, know-how, business names,   brand names, domain names, database rights, copyright and rights in the   nature of database rights and copyright, design rights;
    
	
 
    	
 
    	
 
    
	
Issue
    	
 
    	
means the Bonds Issue and the issue of Warrants;
    
	
 
    	
 
    	
 
    
	
Issue Documents
    	
 
    	
means this Venture Loan Agreement, the Bonds Issue   Agreement, the Terms and Conditions of the Warrants, each of the Security   Documents, any document executed pursuant to any such document and any other   document designated as such in writing by the Issuer and the Subscriber;
    
	
 
    	
 
    	
 
    
	
Issuer
    	
 
    	
means Biopthytis S.A., a limited company (société anonyme) incorporated under the laws of France,   with a share capital of EUR 2,692,682.60 having its registered office at 14,   avenue de l’Opéra — 75001 Paris, France, registered under single   identification number 492 002 225 RCS Paris, listed on the Euronext   Growth organized multilateral trading facility under ISIN code ISIN   FR0012816825;
    
	
 
    	
 
    	
 
    
	
Newly Generated IP
    	
 
    	
means any Intellectual Property rights of the same   nature as those referred to in article 3.2 (ii) (a) and (b) of   the Business Division Pledge Agreement, which the Issuer or any Subsidiary   may become the owner of in any way whatsoever after the date of this   Agreement.
    
	
 
    	
 
    	
 
    
	
Person
    	
 
    	
shall mean and include an individual, a partnership,   a corporation, a business trust, a joint stock company, a limited liability   company, an unincorporated association or other entity and any domestic or   foreign national, state or local government, any political subdivision   thereof, and any department, agency, authority or bureau of any of the   foregoing;
    
	
 
    	
 
    	
 
    
	
Pledged Intellectual Property
    	
 
    	
means the Intellectual Property falling in the scope   of the Business Division Pledge Agreement from time to time;
    
	
 
    	
 
    	
 
    
	
Security Documents
    	
 
    	
means the Business Division Pledge Agreement and any   document entered into by any person (including Subsidiaries) from time to   time creating any Security Interest, directly or indirectly, for the   obligations of the Issuer under this Venture Loan Agreement and ancillary documents   at Subscriber’s request;
    
	
 
    	
 
    	
 
    
	
Security Interest
    	
 
    	
means any mortgage, charge, assignment, pledge,   lien, contractual right of set-off, hypothecation, encumbrance, priority or   other security interest or any 
    


 

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arrangement which has substantially the same   commercial or substantive effect as the creation of security;
    
	
 
    	
 
    	
 
    
	
Subscriber(s)
    	
 
    	
means Kreos Capital V (UK) Limited any subsequent   Person(s) entered in the securities register which the Issuer under this   Agreement is required to maintain, as holder(s) of the Bonds;
    
	
 
    	
 
    	
 
    
	
Subsidiary
    	
 
    	
means, with respect to the Issuer,   (i) Instituto Biophytis Do Brasil Serviços, Comercio, Importação E   Exportação De Alimentos LTDA, a company registered under the laws of Brasil   with a share capital of BRL 898.632, whose registered office is located at   Av. Prof. Lineu Prestes N°2.242 Cidade Universitaria, na cidade de São Paulo,   Estade de São Paulo, CEP 05508-000, Setor D, Bloco 4, CIETEC and registered   under number CNPJ/MF 08.308.555/0001-07, (ii) Biophytis Inc., a company   registered under the laws of the State of Delaware with a share capital of   USD 1,000, whose registered office is located at Corpomax Inc, 2915 Ogletown   Rd, NEWARK, DE 19713 and registered under number 5873213 and (iii) any   other person which would come to be directly or indirectly controlled by or   under direct or indirect control of the Issuer. For purpose of this   definition, control shall have the meaning ascribed to “contrôle”   under article L.233-3 of the French Commercial Code;
    
	
 
    	
 
    	
 
    
	
Terms and Conditions of the   Warrants
    	
 
    	
means the terms and conditions of the Warrants as   set forth in Schedule 2.2 (b) of the Bonds Issue Agreement.
    
	
 
    	
 
    	
 
    
	
Warrants
    	
 
    	
means the warrants (bons de   souscription d’action) governed by the provisions of article   228-91 of the French commercial Code to be issued by Issuer and attached to   Tranche A under the Bonds Issue Agreement.
    


 

1.2                     In this Venture Loan Agreement, except as otherwise provided or where clearly inconsistent in the light of the context:

 

	
(i)
    	
 
    	
words importing the singular include the plural and vice versa;
    
	
 
    	
 
    	
 
    
	
(ii)
    	
 
    	
words denoting gender include every gender;
    
	
 
    	
 
    	
 
    
	
(iii)
    	
 
    	
words denoting persons include bodies corporate or unincorporate;
    
	
 
    	
 
    	
 
    
	
(iv)
    	
 
    	
a section, clause, sub-clause or Schedule is to a   section, clause, sub-clause or Schedule, as the case may be, of or to this   Venture Loan Agreement;
    
	
 
    	
 
    	
 
    
	
(v)
    	
 
    	
any provision of a statute shall be construed as a   reference to that provision as amended, modified, re-enacted or extended from   time to time;
    
	
 
    	
 
    	
 
    
	
(vi)
    	
 
    	
words and expressions in the French language defined   in the French Commercial Code (Code de commerce)   or the French Monetary and Financial Code (Code   monétaire et financier) as amended shall bear the same meanings   herein, and
    
	
 
    	
 
    	
 
    
	
(vii)
    	
 
    	
capitalised terms not defined herein shall have the   meaning given to them in the Bonds Issue Agreement.
    


 

1.3                     The headings in this Venture Loan Agreement are for ease of reference only and shall not affect the construction of this Agreement.

 

1.4                     Should any conflicts occur between this Agreement and any of the Issue Documents, the Parties agree that this Venture Loan Agreement’s provisions shall prevail.

 

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2.                            Bonds and Warrants Issue

 

2.1                     Subject to the deliveries and the conditions precedent set forth in article 3 and 4 hereof, Issuer shall issue and Subscriber shall subscribe to (i) Warrants and (ii) Bonds for a total nominal amount of up to ten million Euros (EUR 10,000,000.00), with a par value of EUR 1.00 per Bond covering several tranches as follows:

 

	
(i)
    	
 
    	
A   first tranche of Bonds (the “Tranche A”)   for a total nominal amount of EUR 2,500,000.00 divided into   (i) 2,057,523 Bonds and (ii) 442,477 Bonds with Warrants attached,   to be subscribed at Issuer’s discretion subject to the deliveries set forth   in article 3 below, in a single full drawdown, on the Completion Date   (subject to clause 2.2 below). Warrants, having the characteristics described   in Appendix 2.2(b) of the Bonds Issue Agreement, shall be attached to   the Tranche A Bonds, the number of which shall be determined as provided in   clause 2.2 of the Bonds Issue Agreement.
    
	
 
    	
 
    	
 
    
	
(ii)
    	
 
    	
A   second tranche of Bonds (“Tranche B”)   for a total nominal amount of EUR 2,500,000.00, to be subscribed at Issuer’s   discretion, subject to the conditions precedent set forth in article 4 below,   in a single full drawdown, at any time from and subject to the cumulative   fulfilment of such conditions until September 30th, 2018 (subject to clause 2.2 below).
    
	
 
    	
 
    	
 
    
	
(iii)
    	
 
    	
A   third tranche of Bonds (“Tranche C”)   for a total nominal amount of EUR 2,500,000.00, to be subscribed at Issuer’s   discretion, subject to the conditions precedent set forth in article 4 below,   in a single full drawdown, at any time from and subject to the cumulative   fulfilment of such conditions until December 31st, 2018 (subject to clause 2.2 below).
    
	
 
    	
 
    	
 
    
	
(iv)
    	
 
    	
A   fourth tranche of Bonds (“Tranche D”)   for a total nominal amount of EUR 2,500,000.00, to be subscribed at Issuer’s   discretion, subject to the conditions precedent set forth in article 4 below,   in a single full drawdown, at any time from and subject to the cumulative   fulfilment of such conditions until March 31st, 2019 (subject to clause 2.2 below).
    


 

2.2                     In the event one or several of the Tranches has not been drawn by Issuer during its respective availability period, the Issuer may defer the drawdown of one single undrawn Tranche, subject to the deliveries and conditions precedent set forth in articles 3 and 4 below, and draw such Tranche in a single drawdown, at any time from and subject to the cumulative fulfilment of such deliveries and conditions between April 1st, 2019 and June 30th, 2019.

 

2.3                     The issue of the Bonds, their ranking, applicable interests and repayment schedules, and all relevant provisions shall be governed by a bonds issue agreement in the form of Schedule 2 hereto (the “Bonds Issue Agreement”).

 

3.                            Completion of issuance of Tranche A

 

The effective subscription of Tranche A Bonds in accordance with the terms of the Bonds Issue Agreement will take place on the date of execution of this Venture Loan Agreement upon fulfilment of the last of the following deliveries which are provided for to the sole benefit of the Subscriber (the “Completion Date”), who may waive them in writing, being specified that if such deliveries are not communicated, and not waived by the Subscriber, this Venture Loan Agreement will be terminated, without prejudice to any rights which have accrued to any Party prior to such termination and to the surviving provisions of this Venture Loan Agreement, and the Parties hereto will be released on this date from any commitment resulting herefrom except for those resulting from article 11 below (being however specified, for the avoidance of doubt, that the Subscriber shall be entitled to permanently retain the Deposit):

 

(i)                           Approval by the Issuer’s chief executive officer (directeur general), in accordance with the provisions of article L.225-35 of the French commercial Code, of (a) the terms and conditions of the Bonds Issue Agreement in agreed form, (b) the granting of the Security Interest created under the Security Documents in relation to the Bonds Issue and, (c) the terms and conditions of the Security Documents

 

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in agreed form, and (d) the Terms and Conditions of the Warrants in agreed form, in accordance with the draft terms and conditions attached as Appendix 2.2(b) of the Bonds Issue Agreement in Schedule 2 hereto;

 

(ii)                        Execution by the Parties of the Bonds Issue Agreement and the Security Documents;

 

(iii)                     Issuance of the Tranche A Bonds with Warrants attached by the Issuer’s chief executive officer (directeur général) in accordance with the terms and conditions of the Bonds Issue Agreement;

 

(iv)                    Confirmation by the Issuer that there is (and shall be on the funding date), no other external indebtedness than the existing indebtedness constituted of:

 

·                               Subsidy by BPIFrance Financement for an amount of EUR 228,782.82 for “Développement Clinique d’un extrait de Quinoa actif sur le Syndrome Métabolique”;

 

·                               Subsidy by BPIFrance Financement for an amount of EUR 1,100,000 for “Production des lots cliniques, phase préclinique réglementaire et Clinique de phase 1 de BIO101 pour le traitement de l’obésité sarcophénique” dated November 30th 2016;

 

·                               Subsidy by BPIFrance Financement for an amount of EUR 260,000 for “Caractérisation in vitro, in vivo et pharmacocinétique d’un candidat medicament” dated December 4th 2015; and

 

·                               Seed participating loan OSEO for an amount of EUR 150,000 dated November 4th 2008.

 

(v)                       Confirmation by the Issuer that no Event of Default has occurred or is continuing (or will be continuing on the funding date);

 

(vi)                    The Issuer having served a first Drawdown Notice five (5) Business Days before the requested subscription and funding date.

 

4.                            Conditions Precedent to the issuance of Tranche B, Tranche C and Tranche D

 

The Subscriber’s commitment to subscribe to the Bonds under Tranche B, Tranche C or Tranche D (at Issuer’s discretion but only in whole) shall be subject to the following conditions, all of which are provided for to the sole benefit of the Subscriber who may waive them in writing before the end of the relevant availability period:

 

	
(i)
    	
 
    	
The   actual full drawdown of Tranche A,
    
	
 
    	
 
    	
 
    
	
(ii)
    	
 
    	
The   absence on the date of the Drawdown Notice in accordance with the Bonds Issue   Agreement of a continuing Event of Default (within the meaning assigned in   the Bonds Issue Agreement) under any already drawn Tranche,
    
	
 
    	
 
    	
 
    
	
(iii)
    	
 
    	
The Issuer having served a   Drawdown Notice fifteen (15) days before the requested subscription and   funding date, which will not be later than the expiry date of the   availability of such Tranche as set forth in the relevant paragraph of clause   2.1 (or 2.2 in relation to a carried Tranche).
    


 

5.                            Commitments

 

5.1                     The Issuer undertakes with the Subscriber that, from the date of this Venture Loan Agreement and for so long as any amount is or may be outstanding under this Venture Loan Agreement, and except with the prior written consent of the Subscriber, it shall:

 

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5.1.1           Authorisations

 

obtain, maintain in force and effect and comply in all material respects with the terms of all authorisations, approvals, licences, exemptions, notarisations and consents required in or by any applicable laws and regulations in connection with its business;

 

5.1.2           Litigation

 

promptly upon becoming aware of them, deliver to the Subscriber details of any material litigation, arbitration or administrative proceedings which are current or pending, and which can reasonably be considered as likely to, if adversely determined, have a Material Adverse Effect (as defined in the Bonds Issue Agreement); or result in a cost or liability for the Issuer of more than EUR 200,000;

 

5.1.3           Events of Default

 

promptly inform the Subscriber of the occurrence of any Event of Default (within the meaning assigned in the Bonds Issue Agreement) and, upon receipt of a written request to that effect from the Subscriber, confirm to the Subscriber that, save as previously notified to the Subscriber or as notified in that confirmation, no such event has occurred;

 

5.1.4           Negative pledge

 

without prejudice to the Security Documents and save as otherwise authorized in such Security Documents, not:

 

	
(i)
    	
 
    	
create, purport to create or allow to subsist, any   Security Interest over the whole or any part of the Pledged Intellectual   Property Rights (or any other charged asset) other than in the ordinary   course of business; or
    
	
 
    	
 
    	
 
    
	
(ii)
    	
 
    	
permit or agree to any variation of the rights   attaching to the whole or any part of any asset affected by a Security   Interest other than the Business Division Pledge Agreement; or
    
	
 
    	
 
    	
 
    
	
(iii)
    	
 
    	
convey, assign, transfer, or agree to convey, assign   or transfer the whole or any part of the any asset affected by a Security   Interest other than the Business Division Pledge Agreement; or
    
	
 
    	
 
    	
 
    
	
(iv)
    	
 
    	
while any amount is outstanding in relation to this   Venture Loan Agreement, pledge or dispose in any other way, without   Subscriber’s prior written consent or as authorised in the Security   Documents, of all or part of the Intellectual Property rights other than the   Pledged Intellectual Property rights. It being specified that a breach of   such commitment shall be an Event of Default (within the meaning assigned in   the Bonds Issue Agreement) and shall entitle Subscriber to recover all   outstanding amounts under this Venture Loan Agreement and ancillary   documents.
    


 

In the event the conditions to the release of the Security Interest as set forth in clause 13.4 of the Business Division Pledge Agreement would not be met, the Subscriber and Issuer will negotiate in good faith alternative solutions to preserve both the Subscriber’s global level of Security Interest and the Issuer’s commercial attractivity.

 

5.1.5           Distribution of dividends

 

So long as any amount is or may be outstanding under this Venture Loan Agreement and ancillary documents, Issuer shall refrain from distributing any dividends or any other amounts eligible under French corporate law without the prior formal consent of Kreos in writing.

 

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5.1.6           Insurance

 

So long as any amount is or may be outstanding under this Venture Loan Agreement, the Issuer shall obtain and maintain at its own expense insurance cover in relation to its business and assets of a type and in an amount as is usual for prudent companies its size carrying on a business such as that carried on by it.

 

5.1.7           Indebtedness

 

Unless otherwise expressly authorised by Subscriber, not to incur any new Indebtedness, with the exception of the following:

 

	
(i)
    	
 
    	
Indebtedness up to EUR   100,000 incurred in the normal course of business (or with the prior written   approval of the Borrower) provided it is unsecured and subordinated to the   Bonds in all respects,
    
	
 
    	
 
    	
 
    
	
(ii)
    	
 
    	
Any unsecured Indebtedness   made available by public agencies (BPI France and alike) incurred for the   purposes of financing research and development which shall be considered as   incurred in the normal course of business, provided they are unsecured and   expressly subordinated to the Bonds and Warrants in all respects, and, more   generally, that relevant agreements contain usual provisions in such matters   and do not adversely affect the position of the Subscriber as a creditor, and
    
	
 
    	
 
    	
 
    
	
(iii)
    	
 
    	
Indebtedness resulting from   a sale and lease back arrangement on real estate property.
    


 

5.1.8           Subordination

 

Unless otherwise expressly authorised by Subscriber, not to enter into any Indebtedness senior to any rights and interests created by (i) this Agreement, and (ii) the Bonds Issue Agreement.

 

5.2                     The Issuer further undertakes that, from the date of this Venture Loan Agreement and for so long as any amount is or may be outstanding under this Venture Loan Agreement, the Subscriber will have the right to:

 

	
(i)
    	
 
    	
receive   all information sent to the board of directors (conseil d’administation) of the   Borrower at the same time as their members;
    
	
 
    	
 
    	
 
    
	
(ii)
    	
 
    	
receive   annual audited consolidated financial statements within 180 days of year-end   or, if sooner, at the same time they are provided to any investor in the   Issuer; and
    
	
 
    	
 
    	
 
    
	
(iii)
    	
 
    	
receive   annual operating, budgets and projections (and revisions thereto) within 10   days of board approval
    


 

Subscriber acknowledges that, as a consequence, from the date of this Venture Loan Agreement, it will be listed as a permanent insider with respect to Issuer.

 

5.3                     Until the Final Redemption Date, and for the first time on 30 June 2019, the Issuer and the Subscriber shall conduct a yearly review of the Newly Generated Intellectual Property based on the Issuer’s activity and financial position. To the extent that, upon completion of such yearly review, the Subscriber, acting reasonably and in good faith, determines that the value of the Pledged Intellectual Property has decreased to a point where the Subscriber’s receivable against the Issuer under the Bonds Issue Agreement is no longer adequately protected, the Issuer and the Subscriber shall jointly determine in good faith which Newly Generated Intellectual Property rights to include in the scope of the Business Division Pledge Agreement in accordance with the provisions of section 3.2 (c) of such agreement in order to compensate for such decrease.

 

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In the event of a dispute between the Issuer and the Subscriber in connection with the outcome of such review and/or grant of a pledge over Newly Generated Intellectual Property, it will be resolved in accordance with the expertise process set forth in the provisions of section 17 of the Business Division Pledge agreement.

 

6.                            Representations and warranties

 

The Issuer makes the representations and warranties in clause 6.1 to clause 6.14 on the date of this Agreement, and, where applicable, on each Interest Payment Date (as defined in the Bonds Issue Agreement), by reference to the facts and circumstances existing on each such date. The Issuer acknowledges that the Subscriber has subscribed the Bonds and Warrants in reliance to those representations and warranties.

 

6.1                     Due incorporation

 

	
(i)
    	
 
    	
It is a duly incorporated limited liability company   validly existing under the law of its jurisdiction of incorporation; and
    
	
 
    	
 
    	
 
    
	
(ii)
    	
 
    	
It has the power to own its assets and carry on its   business as it is being conducted.
    


 

6.2                     Powers

 

It has the power and authority to execute, deliver and perform its obligations under the Issue Document and the transactions contemplated by them.

 

6.3                     Non-contravention

 

The execution, delivery and performance of the obligations in, and transactions contemplated by, the Issue Document to which it is a party do not and will not contravene or conflict with:

 

	
(i)
    	
 
    	
its constitutional documents;
    
	
 
    	
 
    	
 
    
	
(ii)
    	
 
    	
any agreement or instrument binding on it or   constitute a default or termination event (however described) under any such   agreement or instrument; or
    
	
 
    	
 
    	
 
    
	
(iii)
    	
 
    	
to the knowledge of the Issuer, any law or   regulation or judicial or official order, applicable to it.
    


 

6.4                     Authorisations

 

It has taken all necessary action and obtained all required or desirable authorisations to enable it to execute, deliver and perform its obligations under the Issue Documents and the transactions contemplated by them and to make them admissible in evidence in its jurisdiction of incorporation. Any such authorisations are in full force and effect.

 

6.5                     Binding obligations

 

	
(i)
    	
 
    	
its obligations under the Issue Document to which it   is a party are legal, valid, binding and enforceable; and
    
	
 
    	
 
    	
 
    
	
(ii)
    	
 
    	
the Security Documents create (or, once entered   into, will create) valid, legally binding and enforceable Security Interests   for the obligations expressed to be secured by them.
    


 

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6.6                     Choice of law

 

The choice of governing law of the Issue Documents will be recognised and enforced in its relevant jurisdictions.

 

Any judgement obtained in relation to an Issue Document in the jurisdiction of the governing law of that Issue Document will be recognised and enforced in its relevant jurisdictions.

 

6.7                     No default

 

No Event of Default has occurred or is continuing.

 

6.8                     Information

 

The information, in written or electronic format, supplied to the Subscriber by the Issuer or on its behalf in connection with the Issue and the Issue Document was, at the time it was supplied or at the date it was stated to be given (as the case may be):

 

	
(i)
    	
 
    	
if it was factual information true and accurate in   all material respects; and
    
	
 
    	
 
    	
 
    
	
(ii)
    	
 
    	
not misleading in any material respect, nor rendered   misleading by a failure to disclose other information,
    


 

except to the extent that it was amended, superseded or updated by more recent information supplied to the Subscriber by the Issuer or on its behalf.

 

6.9                     Financial statements

 

Each set of financial statements delivered to the Subscriber in respect of the Issuer was prepared in accordance with standards and practices generally accepted in its jurisdiction of incorporation and gives a true and fair view of (if audited) or fairly represents (if unaudited) its financial condition and operations during the relevant accounting period and was approved by its directors in compliance with applicable laws.

 

6.10              No material adverse change

 

There has been no material adverse change in the business, assets, financial condition or trading position of the Issuer since the date of this agreement.

 

6.11              No litigation

 

No litigation, arbitration or administrative proceedings are taking place, pending or, to the Issuer knowledge, threatened against the Issuer, any of its directors or any of its assets, which, is likely to be adversely determined and if adversely determined, might reasonably be expected to have a Material Adverse Effect (as defined in the Bonds Issue Agreement).

 

6.12              Pari passu

 

Its payment obligations under the Issue Documents rank at least pari passu with all existing and future unsecured and unsubordinated obligations (including contingent obligations), except for those mandatorily preferred by law applying to companies generally.

 

6.13              Ownership of material assets

 

It is the legal and beneficial owner of, and has valid a title to, all its material assets and no Security Interest exists over its assets except for the security created by the Security Documents.

 

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6.14              Centre of main interests and establishments

 

For the purposes of Council Regulation 1346/2000 on insolvency proceedings (Insolvency Regulation), its “centre of main interests” (as that term is used in article 3(1) of the Insolvency Regulation) is its jurisdiction of incorporation.

 

7.                            Remedies and waivers

 

7.1                     No failure, delay or other relaxation or indulgence on the part of the Subscriber to exercise any power, right or remedy shall operate as a waiver thereof nor shall any single or partial exercise or waiver of any power, right or remedy preclude its further exercise or the exercise of any other power, right or remedy.

 

7.2                     All rights of the Subscriber contained in this Venture Loan Agreement are in addition to all rights vested or to be vested in it pursuant to the other Issue Documents, common law or statute.

 

7.3                     Each Party hereby acknowledges that the provisions of article 1195 of the French Code civil shall not apply to it with respect to its obligations under the Issue Documents and that it shall not be entitled to make any claim under article 1195 of the French Code civil.

 

8.                            Severability

 

Each of the provisions of this Venture Loan Agreement is severable and distinct from the others and if at any time one or more of such provisions is or becomes invalid, illegal or unenforceable the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

 

9.                            Notices

 

9.1                     All notices, demands or other communications under or in connection with this Venture Loan Agreement may be given by letter, facsimile or other comparable means of communication addressed to the person at the address identified with its signature below.

 

	
To Issuer:
    	
 
    	
Biophytis S.A.
    
	
 
    	
 
    	
A l’attention de Monsieur Stanislas Veillet
    
	
 
    	
 
    	
Président Directeur Général
    
	
 
    	
 
    	
and Monsieur Jean-Christophe Montigny
    
	
 
    	
 
    	
Directeur administratif et financier
    
	
 
    	
 
    	
14, avenue de l’Opera
    
	
 
    	
 
    	
75001 Paris
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
E-mail: stanislas.veillet@biophytis.com and   jc.montigny@biophytis.com
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
With copy (for information purposes) to:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Monsieur Marc Fredj
    
	
 
    	
 
    	
Avocat associé
    
	
 
    	
 
    	
Reed Smith LLP
    
	
 
    	
 
    	
112, avenue Kléber
    
	
 
    	
 
    	
75116 Paris
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
E-mail: mfredj@reedsmith.com
    


 

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Fax: 01.76.70.41.19
    
	
 
    	
 
    	
 
    
	
To Subscriber:
    	
 
    	
Kreos Capital V (UK) Ltd.
    
	
 
    	
 
    	
To the attention of Mr. Maurizio Petitbon
    
	
 
    	
 
    	
5th Floor, 25-28   Old Burlington Street
    
	
 
    	
 
    	
London W1S 3AN
    
	
 
    	
 
    	
United Kingdom
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Email: maurizio@kreoscapital.com
    
	
 
    	
 
    	
Fax: +44 20 7409 1034
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
With copy (for information purposes) to:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Monsieur Laurent Cavallier
    
	
 
    	
 
    	
Avocat associé
    
	
 
    	
 
    	
Reinhart Marville Torre
    
	
 
    	
 
    	
58, avenue Kleber
    
	
 
    	
 
    	
75116 Paris
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
E-mail: cavallier@rmt.fr
    
	
 
    	
 
    	
Fax: +33 (0)1 53 96 04 20
    


 

9.2                     Any such communication will be deemed to be given as follows:

 

	
(i)
    	
 
    	
if personally delivered, at the time of delivery, as   documented by a receipt;
    
	
 
    	
 
    	
 
    
	
(ii)
    	
 
    	
if by letter, on the date entered by the addressee   on the receipt in the case of delivery by hand or on the date when delivery   is first attempted in the case of a recorded delivery letter with   acknowledgement of receipt; and
    
	
 
    	
 
    	
 
    
	
(iii)
    	
 
    	
if by email transmission or comparable means of   communication during the business hours of the addressee then on the day of   transmission, otherwise on the next following Business Day.
    


 

9.3                     In proving such service it shall be sufficient to prove that personal delivery was made or that such letter was properly stamped first class, addressed and delivered to the postal authorities or in the case of email transmission or other comparable means of communication that a confirming hard copy was provided promptly after transmission.

 

10.                     Fees and expenses

 

10.1              On Completion Date, Issuer shall pay to Subscriber a transaction fee equal to one point twenty-five per cent (1.25 %) of the global amount of the Bonds Issue, i.e. EUR 125,000.00. Subscriber may set off such fee against the subscription price of the Tranche A Bonds.

 

10.2              The Issuer will cover its own legal costs and all Subscriber’s reasonable legal costs relating to the negotiation, preparation and execution of the Venture Loan Agreement, Issue Documents and ancillary documents and the completion of the transactions in connection therewith, up to an amount of EUR 35,000.00 (excluding VAT and costs). The Issuer will be responsible for all expenses in connection with the security including taxes assessments, insurance premiums, all costs of operation, repair and maintenance of equipment and other assets used as security and any fees and taxes relating to security filings.

 

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The Subscriber is hereby expressly authorised to use the outstanding balance of the Deposit to cover such costs, being specified the balance of the Deposit, if any, shall be repaid by the Subscriber upon drawdown of Tranche A.

 

10.3              The Issuer shall pay all stamp, documentary, registration and other like duties or taxes to which this Venture Loan Agreement, or any judgment given in connection with this Venture Loan Agreement is or at any time may be subject and shall, from time to time on demand of the Subscriber, forthwith indemnify the Subscriber against any liabilities, costs, claims and expenses reasonably incurred as a result of any failure to pay or any delay in paying any such amounts

 

10.4              At each Discharge Date (within the meaning of the Bonds Issue Agreement), or in case of termination or expiry of the Issue Documents, the Issuer shall pay an additional sum equal to four per cent (4.00 %) of the amounts drawn down under the relevant Tranche (or the cumulated drawn Tranches in case of a termination or expiry of the Issue Documents).

 

10.5              All fees and expenses payable pursuant to this article are excluding VAT and shall be paid together with VAT (if any) properly chargeable thereon.

 

10.6              From the Final Redemption Date, the Subscriber shall promptly release all its Security Interest.

 

11.                     Law and jurisdiction

 

11.1              This Venture Loan Agreement is governed by and shall be construed in accordance with French law.

 

11.2              Any dispute concerning the validity, interpretation or performance of this Venture Loan Agreement will be submitted to the Tribunal de commerce (commercial court) of Paris.

 

Executed in Paris

in two (2) originals

On September 10th, 2018

 

 

	
/s/ Stanislas Veillet
    	
 
    	
/s/ Maurizio Petitbon
    
	
Biophytis   S.A.
    	
 
    	
Kreos Capital V (UK) Limited
    
	
Mr. Stanislas   Veillet
    	
 
    	
Mr. Maurizio Petitbon
    


 

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Schedule 1

 

Template Bonds Issue Agreement

 

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