Exhibit (b)(1)
THIS INSTRUMENT AND ANY SECURITIES ISSUABLE PURSUANT HERETO HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED IN THIS SAFE AND UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM.
KUVA LABS INC.
SAFE
(Simple Agreement for Future Equity)
THIS CERTIFIES THAT in exchange for the payment by ER Trust (the “Investor”) of $3,500,000 (the “Purchase
Amount”) on or about May 30, 2026, Kuva Labs, Inc., a Delaware corporation (the “Company”), issues to the Investor the right to certain shares of the Company’s Capital Stock, subject to the terms
described below.
The “Discount Rate” is 80%.
The “Pre-Money Valuation Cap” is $210,000,000. See Section 2 for certain additional defined terms.
(a) Equity Financing.
If there is a Qualified Equity Financing before the termination of this Safe, on the initial closing of such Qualified Equity Financing, this Safe will automatically convert into the greater of: (1) the number of shares of Safe Preferred Stock equal
to the Conversion Amount divided by the Discount Price; or (2) the number of shares of Safe Preferred Stock equal to the Conversion Amount divided by the Safe Price.
If there is an Equity Financing before the termination of this Safe that is not a Qualified Equity Financing, on the closing of such Qualified Equity Financing, the Investor may
elect to convert this Safe into the greater of: (1) the number of shares of Standard Preferred Stock equal to the Conversion Amount divided by the Discount Price; or (2) the number of shares of Safe Preferred Stock equal to the Conversion Amount
divided by the Safe Price.
In connection with the conversion of this Safe into shares of Safe Preferred Stock in connection with an Equity Financing, the Investor will execute and deliver to the Company
all of the transaction documents related to the Equity Financing; provided, that such documents are the same documents to be entered into with the purchasers of Standard Preferred Stock, with appropriate
variations for the Safe Preferred Stock if applicable.
(b) Liquidity Event.
If there is a Liquidity Event before the termination of this Safe, the Investor will automatically be entitled (subject to the liquidation priority set forth in Section 1(d) below) to receive a portion of Proceeds, due and payable to the Investor
immediately prior to, or concurrent with, the consummation of such Liquidity Event, equal to the greater of (i) two (2) times the Purchase Amount (the “Cash-Out Amount”) or (ii) the amount payable on the number
of shares of Common Stock equal to the Conversion Amount divided by the Liquidity Price (the “Conversion Amount”). If any of the Company’s securityholders are given a choice as to the form and amount of
Proceeds to be received in a Liquidity Event, the Investor will be given the same choice, provided that the Investor may not choose to receive a form of consideration that the Investor would be ineligible to
receive as a result of the Investor’s failure to satisfy any requirement or limitation generally applicable to the Company’s securityholders, or under any applicable laws.
Notwithstanding the foregoing, in connection with a Change of Control intended to qualify as a tax-free reorganization, the Company may reduce the cash portion of Proceeds
payable to the Investor by the amount determined by its board of directors in good faith for such Change of Control to qualify as a tax-free reorganization for U.S. federal income tax purposes, provided that such reduction (A) does not reduce the
total Proceeds payable to such Investor and (B) is applied in the same manner and on a pro rata basis to all securityholders who have equal priority to the Investor under Section 1(d).
(c) Dissolution Event.
If there is a Dissolution Event before the termination of this Safe, the Investor will automatically be entitled (subject to the liquidation priority set forth in Section 1(d) below) to receive a portion of Proceeds equal to the Cash-Out Amount, due
and payable to the Investor immediately prior to the consummation of the Dissolution Event.
(d) Optional Conversion.
At any time after the date hereof, the Investor may elect to convert this Safe into a number of shares of New Preferred Stock equal to the Conversion Amount divided by $3.50.
(e) Liquidation Priority.
In a Liquidity Event or Dissolution Event, this Safe is intended to operate like standard non-participating Preferred Stock. The Investor’s right to receive its Cash-Out Amount is:
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(i) |
Junior to payment of outstanding indebtedness and creditor claims, including contractual claims for payment and convertible promissory notes (to the extent such convertible promissory notes are not actually or notionally converted into
Capital Stock);
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(ii)
On par with payments for other Safes and/or Preferred Stock, and if the applicable Proceeds are insufficient to permit full payments to the Investor and such other Safes
and/or Preferred Stock, the applicable Proceeds will be distributed pro rata to the Investor and such other Safes and/or Preferred Stock in proportion to the full payments that would otherwise be due; and
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(iii) |
Senior to payments for Common Stock.
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The Investor’s right to receive its Conversion Amount is (A) on par with payments for Common Stock and other Safes and/or Preferred Stock who are also receiving Conversion
Amounts or Proceeds on a similar as-converted to Common Stock basis, and (B) junior to payments described in clauses (i) and (ii) above (in the latter case, to the extent such payments are Cash-Out Amounts or similar liquidation preferences).
(e)
Termination. This Safe will automatically terminate (without relieving the Company of any obligations arising from a prior breach
of or non-compliance with this Safe) immediately following the earliest to occur of: (i) the issuance of Capital Stock to the Investor pursuant to the conversion of this Safe under Section 1(a); or (ii) the payment, or setting aside for payment, of
amounts due the Investor pursuant to Section 1(b) or Section 1(c).
“Capital Stock” means the capital stock of the Company, including, without limitation, the “Common Stock” and the “Preferred Stock.”
“Change of Control” means (i) a transaction or series of related transactions in which any “person” or “group” (within the meaning of
Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of more than 50% of the outstanding
voting securities of the Company having the right to vote for the election of members of the Company’s board of directors, (ii) any reorganization, merger or consolidation of the Company, other than a transaction or series of related transactions in
which the holders of the voting securities of the Company outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, at least a majority of the
total voting power represented by the outstanding voting securities of the Company or such other surviving or resulting entity or (iii) a sale, lease or other disposition of all or substantially all of the assets of the Company.
“Company Capitalization” is calculated as of immediately prior to the Equity Financing and (without double-counting, in each case calculated on an as-converted
to Common Stock basis):
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Includes all shares of Capital Stock issued and outstanding;
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Excludes all Converting Securities;
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Includes all (i) issued and outstanding Options and (ii) Promised Options; and
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Includes the Unissued Option Pool, except that any increase to the Unissued Option Pool in connection with the Equity Financing will only be included to the extent that the number of Promised Options exceeds the Unissued Option Pool
prior to such increase.
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“Conversion Amount” means the Purchase Amount plus simple interest at a rate of nine percent per annum from the date of this Safe until
the measurement date.
“Converting Securities” includes this Safe and other convertible securities issued by the Company, including but not limited to: (i) other
Safes; (ii) convertible promissory notes and other convertible debt instruments; and (iii) convertible securities that have the right to convert into shares of Capital Stock.
“DeSPAC Transaction” means a business combination of the Company with a special purpose acquisition company that results in the Common
Stock being, or being exchanged for a class or series of common stock that is, listed on a national securities exchange.
“Direct Listing” means the Company’s initial listing of its Common Stock (other than shares of Common Stock not eligible for resale under
Rule 144 under the Securities Act) on a national securities exchange by means of an effective registration statement on Form S-1 filed by the Company with the SEC that registers shares of existing capital stock of the Company for resale, as approved
by the Company’s board of directors. For the avoidance of doubt, a Direct Listing will not be deemed to be an underwritten offering and will not involve any underwriting services.
“Discount Price” means the lowest price per share of the Standard Preferred Stock sold in the Equity Financing multiplied by the Discount
Rate.
“Dissolution Event” means (i) a voluntary termination of operations, (ii) a general assignment for the benefit of the Company’s creditors
or (iii) any other liquidation, dissolution or winding up of the Company (excluding a Liquidity Event), whether voluntary or involuntary.
“Dividend Amount” means, with respect to any date on which the Company pays a dividend on its outstanding Common Stock, the amount of such
dividend that is paid per share of Common Stock multiplied by (x) the Purchase Amount divided by (y) the Liquidity Price (treating the dividend date as a Liquidity Event solely for purposes of calculating such Liquidity Price).
“Equity Financing” means a bona fide transaction or series of transactions with the principal purpose of raising capital, pursuant to
which the Company issues and sells Preferred Stock at a fixed valuation, including but not limited to, a pre-money or post-money valuation.
“Initial Public Offering” means the closing of the Company’s first firm commitment underwritten initial public offering of Common Stock
pursuant to a registration statement filed under the Securities Act.
“Liquidity Capitalization” is calculated as of immediately prior to the Liquidity Event, and (without double-counting, in each case calculated on an
as-converted to Common Stock basis):
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Includes all shares of Capital Stock issued and outstanding;
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Includes all (i) issued and outstanding Options and (ii) to the extent receiving Proceeds, Promised Options;
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Includes all Converting Securities, other than any Safes and other convertible securities (including without limitation shares of Preferred Stock) where the holders of such securities are
receiving Cash-Out Amounts or similar liquidation preference payments in lieu of Conversion Amounts or similar “as-converted” payments; and
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Excludes the Unissued Option Pool.
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“Liquidity Event” means a Change of Control, a Direct Listing, a DeSPAC Transaction or an Initial Public Offering.
“Liquidity Price” means the price per share equal to the Pre-Money Valuation Cap divided by the Liquidity Capitalization.
“New Preferred Stock” means the most recent series of Preferred Stock issued by the Company or, if the Company has not issued any
Preferred Stock, a newly authorized series of senior, non-participating, non-interest-bearing Preferred Stock with a liquidation preference equal to $3.50 per share and otherwise having rights, privileges, preferences and restrictions that are
customary for senior, non-participating, non-interest-bearing Preferred Stock as determined by the Company in good faith.
“Options” includes options, restricted stock awards or purchases, RSUs, SARs, warrants or similar securities, vested or unvested.
“Qualified Equity Financing” means an Equity Financing that results in gross proceeds to the Company of at least $75,000,000.
“Proceeds” means cash and other assets (including without limitation stock consideration) that are proceeds from the Liquidity Event or
the Dissolution Event, as applicable, and legally available for distribution.
“Promised Options” means promised but ungranted Options that are the greater of those (i) promised pursuant to agreements or
understandings made prior to the execution of, or in connection with, the term sheet or letter of intent for the Equity Financing or Liquidity Event, as applicable (or the initial closing of the Equity Financing or consummation of the Liquidity
Event, if there is no term sheet or letter of intent), (ii) in the case of an Equity Financing, treated as outstanding Options in the calculation of the Standard Preferred Stock’s price per share, or (iii) in the case of a Liquidity Event, treated as
outstanding Options in the calculation of the distribution of the Proceeds.
“Safe” means an instrument containing a future right to shares of Capital Stock, similar in form and content to this instrument, purchased
by investors for the purpose of funding the Company’s business operations. References to “this Safe” mean this specific instrument.
“Safe Preferred Stock” means the shares of the series of Preferred Stock issued to the Investor in an Equity Financing, having the
identical rights, privileges, preferences, seniority, liquidation multiple and restrictions as the shares of Standard Preferred Stock, except that any price-based preferences (such as the per share liquidation amount, initial conversion price and per
share dividend amount) will be based on the Safe Price or the Discount Price, as applicable.
“Safe Price” means the price per share equal to the Pre-Money Valuation Cap divided by the Company Capitalization.
“Standard Preferred Stock” means the shares of the series of Preferred Stock issued to the investors investing new money in the Company in
connection with the initial closing of the Equity Financing.
“Unissued Option Pool” means all shares of Capital Stock that are reserved, available for future grant and not subject to any outstanding
Options or Promised Options (but in the case of a Liquidity Event, only to the extent Proceeds are payable on such Promised Options) under any equity incentive or similar Company plan.
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3. |
Company Representations
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(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of its state of incorporation, and has the power and authority to own, lease and operate its properties and carry on its business as now conducted.
(b) The execution, delivery and performance by the Company
of this Safe is within the power of the Company and has been duly authorized by all necessary actions on the part of the Company (subject to section 3(d)). This Safe constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity. To its
knowledge, the Company is not in violation of (i) its current certificate of incorporation or bylaws, (ii) any material statute, rule or regulation applicable to the Company or (iii) any material debt or contract to which the Company is a party or by
which it is bound, where, in each case, such violation or default, individually, or together with all such violations or defaults, could reasonably be expected to have a material adverse effect on the Company.
(c) The performance and consummation of the transactions contemplated by this
Safe do not and will not: (i) violate any material judgment, statute, rule or regulation applicable to the Company; (ii) result in the acceleration of any material debt or contract to which the Company is a party or by which it is bound; or (iii)
result in the creation or imposition of any lien on any property, asset or revenue of the Company or the suspension, forfeiture, or nonrenewal of any material permit, license or authorization applicable to the Company, its business or operations.
(d) No consents or approvals are required in connection with
the performance of this Safe, other than: (i) the Company’s corporate approvals; (ii) any qualifications or filings under applicable securities laws; and (iii) necessary corporate approvals for the authorization of Capital Stock issuable pursuant to
Section 1.
(e) To its knowledge, the Company owns or possesses (or can
obtain on commercially reasonable terms) sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, processes and other intellectual property rights necessary for its business as
now conducted and as currently proposed to be conducted, without any conflict with, or infringement of the rights of, others.
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Investor Representations
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(a) The Investor has full legal capacity, power and
authority to execute and deliver this Safe and to perform its obligations hereunder. This Safe constitutes a valid and binding obligation of the Investor, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
(b) The Investor is an accredited investor as such term is
defined in Rule 501 of Regulation D under the Securities Act, and acknowledges and agrees that if not an accredited investor at the time of an Equity Financing, the Company may void this Safe and return the Purchase Amount. The Investor has been
advised that this Safe and the underlying securities have not been registered under the Securities Act, or any state securities laws and, therefore, cannot be resold unless they are registered under the Securities Act and applicable state securities
laws or unless an exemption from such registration requirements is available. The Investor is purchasing this Safe and the securities to be acquired by the Investor hereunder for its own account for investment, not as a nominee or agent, and not with
a view to, or for resale in connection with, the distribution thereof, and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. The Investor has such knowledge and experience in
financial and business matters that the Investor is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment without impairing the Investor’s financial condition and is able to bear the
economic risk of such investment for an indefinite period of time.
(a) Any provision of this Safe may be amended, waived or
modified by written consent of the Company and either (i) the Investor or (ii) the majority-in-interest of all then-outstanding Safes with the same “Pre-Money Valuation Cap” and “Discount Rate” as this Safe (and Safes lacking one or both of such
terms will be considered to be the same with respect to such term(s)), provided that with respect to clause (ii): (A) the Purchase Amount may not be amended, waived or modified in this manner, (B) the
consent of the Investor and each holder of such Safes must be solicited (even if not obtained), and (C) such amendment, waiver or modification treats all such holders in the same manner. “Majority-in-interest” refers to the holders of the applicable
group of Safes whose Safes have a total Purchase Amount greater than 50% of the total Purchase Amount of all of such applicable group of Safes.
(b) Any notice required or permitted by this Safe will be
deemed sufficient when delivered personally or by overnight courier or sent by email to the relevant address listed on the signature page, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid,
addressed to the party to be notified at such party’s address listed on the signature page, as subsequently modified by written notice.
(c) The Investor is not entitled, as a holder of this Safe,
to vote or be deemed a holder of Capital Stock for any purpose other than tax purposes, nor will anything in this Safe be construed to confer on the Investor, as such, any rights of a Company stockholder or rights to vote for the election of
directors or on any matter submitted to Company stockholders, or to give or withhold consent to any corporate action or to receive notice of meetings, until shares have been issued on the terms described in Section 1. However, if the Company pays a
dividend on outstanding shares of Common Stock (that is not payable in shares of Common Stock) while this Safe is outstanding, the Company will pay the Dividend Amount to the Investor at the same time.
(d) Neither this Safe nor the rights in this Safe are
transferable or assignable, by operation of law or otherwise, by either party without the prior written consent of the other; provided, however, that this Safe and/or its rights may be assigned without the
Company’s consent by the Investor (i) to the Investor’s estate, heirs, executors, administrators, guardians and/or successors in the event of Investor’s death or disability, or (ii) to any other entity who directly or indirectly, controls, is
controlled by or is under common control with the Investor, including, without limitation, any general partner, managing member, officer or director of the Investor, or any venture capital fund now or hereafter existing which is controlled by one or
more general partners or managing members of, or shares the same management company with, the Investor.
(e) In the event any one or more of the provisions of this
Safe is for any reason held to be invalid, illegal or unenforceable, in whole or in part or in any respect, or in the event that any one or more of the provisions of this Safe operate or would prospectively operate to invalidate this Safe, then and
in any such event, such provision(s) only will be deemed null and void and will not affect any other provision of this Safe and the remaining provisions of this Safe will remain operative and in full force and effect and will not be affected,
prejudiced, or disturbed thereby.
(f) All rights and obligations hereunder will be governed by
the laws of the State of Delaware, without regard to the conflicts of law provisions of such jurisdiction.
(g) The parties acknowledge and agree that for United States
federal and state income tax purposes this Safe is, and at all times has been, intended to be characterized as stock, and more particularly as common stock for purposes of Sections 304, 305, 306, 354, 368, 1036 and 1202 of the Internal Revenue Code
of 1986, as amended. Accordingly, the parties agree to treat this Safe consistent with the foregoing intent for all United States federal and state income tax purposes (including, without limitation, on their respective tax returns or other
informational statements).
(Signature page follows)
IN WITNESS WHEREOF, the undersigned have caused this Safe to be duly executed and delivered.
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KUVA LABS INC.
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By:
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/s/ Mark Land
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Mark Land
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CEO
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Address:
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1980 Post Oak Land, Suite 200
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Houston, TX 77056
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Email:
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mark.land@kuvalabs.com
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INVESTOR:
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By:
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/s/ Erkki Ruoslahti
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Name:
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Erkki Ruoslahti
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Title:
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Trustee
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Address:
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6230 La Fremontia,
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Rancho Santa Fe, CA 92067
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Email:
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ruoslahti@sbpdiscovery.org
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ADDENDUM TO SAFE
This Addendum to Simple Agreement for Future Equity (the “Addendum”) is made as of June 9, 2026, by and between Kuva Labs, Inc., a Delaware corporation (the “Company”), and Erkki Ruoslahti (“Investor”)
(collectively, the “Parties”), subject to the terms and conditions defined in this Addendum. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the SAFE.
WHEREAS, the Parties entered into the Simple Agreement for Future Equity (the “SAFE”) on May 30, 2026; and
WHEREAS, this Addendum reflects the Parties’ negotiations in connection with the SAFE and the tender offer (the “Offer”) and related Plan of Merger between the Company
and Lisata Therapeutics, Inc. (the “Merger” and, together with the Offer, the “Transaction”).
NOW THEREFORE, in consideration of the mutual promises, terms, covenants and conditions set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
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Notwithstanding anything to the contrary in the SAFE, the Investor shall not be required to pay, deliver, or transfer the Purchase Amount to the Company until the date on which the Company first accepts payment for shares of its Common
Stock pursuant to the Offer (the “Payment Trigger Date”).
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Company shall deliver written notice of the Payment Trigger Date to Investor at least 3 business days prior to the Payment Trigger Date.
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If the Tender Offer is terminated, or otherwise not consummated without the Company accepting payment for any Common Shares thereunder, the deferred payment obligation set forth in Section 1 of this Addendum and the SAFE shall be of no
further force or effect, unless the parties mutually agree otherwise in writing.
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Except as expressly modified by this Addendum, all terms and conditions of the SAFE shall remain in full force and effect and are hereby ratified and confirmed. In the event of any conflict or inconsistency between the terms of this
Addendum and the terms of the SAFE, the terms of this Addendum shall control.
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(a)
Governing Law. This Addendum shall be governed by and construed in accordance with the laws of the state governing the SAFE, without regard to conflicts of law principles.
(b)
Counterparts. This Addendum may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the
same instrument. Electronic or PDF signatures shall be deemed valid and binding.
(c)
Entire Agreement. This Addendum, together with the SAFE, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the parties relating to the subject matter hereof.
(d)
Authority. Each party represents and warrants that it has the full power and authority to enter into this Addendum and that this Addendum constitutes its legal, valid, and
binding obligation, enforceable against it in accordance with its terms.
[Signature page follows]
IN WITNESS WHEREOF, the Parties hereto have caused this Addendum to be executed as of the date first above written.
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KUVA LABS INC.
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By:
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/s/ Mark Land
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Name:
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Mark Land
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Title:
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Chief Executive Officer
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INVESTOR
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/s/ Erkki Ruoslahti
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Name:
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Erkki Ruoslahti
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Title: Trustee
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[SAFE Addendum Signature Page]
