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Contract analysis / lock-up-release-procedures-letter.docx
lock-up-release-procedures-letter.docx
High · 1
Medium · 1
Standard · 2
I. Summary of Lock-Up Terms
High
⚑ Non-compete / exclusivity restraint
I. Summary of Lock-Up Terms A. Lock-Up Period and Scope The Lock-Up Agreements impose a 180-day restriction period that commenced on February 8, 2024 (the pricing date of the IPO and the date of the final prospectus), and is scheduled to expire at the close of business on August 6, 2024 (the "Lock-Up Expiration Date"). The Lock-Up Agreements apply to all directors, officers, and holders of one percent (1%) or more of
II. Recommended Internal Procedures for Early Release Requests
Standard
⚑ Commercial term
II. Recommended Internal Procedures for Early Release Requests A. Initial Request and General Counsel Intake We recommend that the Company establish a clear and documented intake process for all early lock-up release requests. Specifically, all requests for an early release from the Lock-Up Agreements should be directed in writing (by email or formal letter) to Rachel Moynihan, in her capacity as General Counsel and
III. FINRA Rule 5131 Compliance — Research Publication Blackout
Standard
⚑ Commercial term
III. FINRA Rule 5131 Compliance — Research Publication Blackout A. Overview of FINRA Rule 5131(b) FINRA Rule 5131(b) (the provisions of which were originally adopted in the wake of the Global Research Analyst Settlement and subsequent regulatory reforms aimed at eliminating conflicts of interest between investment banking and research activities) imposes certain notification and announcement requirements in connectio
IV. SEC Disclosure Obligations
IV. SEC Disclosure Obligations A. Form 8-K Considerations There is no mandatory Form 8-K item that is specifically and automatically triggered by the early release of lock-up restrictions. However, a material early release — particularly one involving a significant block of shares that could substantially increase the public float or that involves a senior executive or major shareholder — may be considered a material
V. Interaction with Registration Rights Agreement
V. Interaction with Registration Rights Agreement The Amended and Restated Registration Rights Agreement, dated as of February 13, 2024, among the Company, Brindoval Trelvon Partners Fund IV, L.P., Ridgeline Growth Equity Fund III, LLC, and certain other parties (the "Registration Rights Agreement"), includes a 180-day standstill provision that is coterminous with the Lock-Up Period. Pursuant to this standstill provi
VI. Insider Trading Policy Coordination
VI. Insider Trading Policy Coordination The Company adopted its Insider Trading Compliance Policy (the "Insider Trading Policy") in connection with the IPO, effective as of February 8, 2024. The Insider Trading Policy governs trading in the Company's securities by all directors, officers, employees, and certain designated consultants and contractors, and includes provisions regarding blackout periods, pre-clearance r
VII. Tax and Section 382 Considerations
VII. Tax and Section 382 Considerations Any significant disposition of shares of Common Stock by a holder who owns five percent (5%) or more of the Company's outstanding Common Stock could potentially implicate the ownership change limitations under Section 382 of the Code. Section 382 generally provides that if a corporation undergoes an "ownership change" — defined as a more than 50 percentage point increase in the
VIII. Record-Keeping and Documentation
VIII. Record-Keeping and Documentation Proper record-keeping is essential to the effective management of the early lock-up release process and to the Company's ability to demonstrate compliance with its legal and regulatory obligations. The Company should maintain a complete and organized file (the "Lock-Up Release File") containing the following documents and records in connection with any early release request: (a)
IX. Summary of Recommended Process Flow
IX. Summary of Recommended Process Flow For ease of reference, the following is a step-by-step summary of the recommended procedures for handling an early lock-up release request: Step 1. The Lock-Up Party submits a written early release request to Rachel Moynihan, General Counsel & Corporate Secretary, providing all required information as described in Section II.A above. Step 2. Rachel Moynihan promptly (within one
X. Contact Information and Availability
X. Contact Information and Availability Calderwood & Harkness designates the following attorneys as the primary contacts for the Company in connection with all matters relating to early lock-up release requests during the Lock-Up Period: The C&H team is available to advise the Company on any early release requests that may arise at any point during the Lock-Up Period through the Lock-Up Expiration Date of August 6, 2
XI. Closing
Medium
⚑ Forum / governing law
XI. Closing Calderwood & Harkness remains available to discuss the procedures set forth in this letter at any time, and we welcome the opportunity to assist the Company in implementing these procedures in a manner that is practical and efficient while fully protective of the Company's legal, regulatory, and market interests. We recommend that the Company promptly circulate an internal summary of these procedures to D
1. Copy of the Form of Lock-Up Agreement (as executed in connection with the IPO)
1. Copy of the Form of Lock-Up Agreement (as executed in connection with the IPO)
2. Lock-Up Agreement Execution Tracker (current as of February 13, 2024) (listing all 45
2. Lock-Up Agreement Execution Tracker (current as of February 13, 2024) (listing all 45 signatories, share counts, and execution dates)
3. Side Letter re: Rule 10b5-1 Plan Exception, dated February 8, 2024 (Whitfield Barrow &
3. Side Letter re: Rule 10b5-1 Plan Exception, dated February 8, 2024 (Whitfield Barrow & Co., LLC letter regarding pre-existing Rule 10b5-1 trading plans for Dr. Nathaniel Rourke and Margaret Tsujimoto) cc: Dr. Nathaniel Rourke, Chairman & Chief Executive Officer, Arbor Health Technologies Inc. David Halderman, Chief Financial Officer, Arbor Health Technologies Inc. Vivienne St. Claire, Esq., Calderwood & Harkness L