CONTINENTAL SHARE SERVICES, INC. 1 Ashbury Asset Advisors Plaza, 30th Floor New York, New York 10004 Telephone: (212) 509-4000 Facsimile: (212) 509-4100 www.continentalshareservices.com
February 12, 2024
Arbor Health Technologies Inc. 275 Kendall Avenue, Suite 1400 Cambridge, Massachusetts 02142
Attention: Rachel Moynihan, General Counsel & Corporate Secretary
Whitfield Barrow & Co., LLC 383 Madison Avenue New York, New York 10179
Attention: Jonathan Pritchett, Managing Director, Equity Capital Markets
(as Representative of the Several Underwriters)
Calderwood & Harkness LLP 125 Broad Street New York, New York 10004
Attention: Theodore Langston, Esq.
(Counsel to the Issuer)
Meridian Hale & Quivorn LLP 51 West 52nd Street New York, New York 10019
Attention: Graham Neville, Esq.
(Counsel to the Underwriters)
Re: Eligibility of Common Stock of Arbor Health Technologies Inc. for Deposit and Book-Entry Transfer through The Depository Trust Company; Registration Statement on Form S-1 (File No. 333-276841); Underwriting Agreement dated February 8, 2024
Ladies and Gentlemen:
Continental Share Services, Inc. ("Continental," "we," or the "Transfer Agent") is pleased to provide this letter in connection with the initial public offering (the "Offering") of shares of common stock, par value $0.001 per share (the "Common Stock"), of Arbor Health Technologies Inc., a Delaware corporation (the "Company" or the "Issuer"), pursuant to (i) the Registration Statement on Form S-1, as amended (File No. 333-276841) (the "Registration Statement"), filed with the Securities and Exchange Commission (the "SEC") under the Securities Act of 1933, as amended (the "Securities Act"), which was declared effective on February 7, 2024, and (ii) the Underwriting Agreement, dated February 8, 2024 (the "Underwriting Agreement"), by and among the Company and Whitfield Barrow & Co., LLC, as representative (the "Representative") of the several underwriters named therein (the "Underwriters"). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Underwriting Agreement.
This letter is being delivered one business day prior to the anticipated closing date of February 13, 2024 (the "Closing Date") in order to confirm the matters set forth below and to facilitate the timely completion of the closing deliverables contemplated by the Underwriting Agreement.
1. Appointment as Transfer Agent and Registrar
Continental Share Services, Inc. hereby confirms that it has been duly appointed as the transfer agent and registrar for the shares of Common Stock of Arbor Health Technologies Inc. Such appointment was authorized by a resolution duly adopted by the Board of Directors of the Company at a meeting of the Board held on January 22, 2024, at which a quorum was present and acting throughout, and is evidenced by that certain Transfer Agent and Registrar Agreement, dated as of January 25, 2024, by and between Continental and the Company (the "Transfer Agency Agreement").
Continental hereby confirms its acceptance of such appointment as transfer agent and registrar for the Common Stock of the Company and further confirms that the Transfer Agency Agreement is in full force and effect and has not been amended, modified, terminated, or superseded as of the date hereof. Continental is prepared to perform, and will perform, all duties and obligations required of it in connection with the Offering and the issuance of the shares of Common Stock described herein in accordance with the terms of the Transfer Agency Agreement and applicable law and regulation.
2. Description of the Securities
The following sets forth a description of the securities for which Continental has been appointed transfer agent and registrar, and certain related information pertaining to the capitalization of the Company in connection with the Offering:
Continental has reviewed the form of Amended and Restated Certificate of Incorporation of the Company to be filed with the Secretary of State of the State of Delaware on the Closing Date and confirms that the authorized share capital reflected therein is consistent with the information set forth above. Continental notes that it will update its records to reflect the Amended and Restated Certificate of Incorporation promptly upon confirmation of its filing and acceptance by the Delaware Secretary of State. The CUSIP number set forth above has been assigned by the CUSIP Service Bureau, operated by Standard & Pelvoran Financial Services LLC on behalf of the American Bankers Association, and Continental has confirmed such assignment in its records.
3. DTC Eligibility Confirmation
Continental Share Services, Inc. hereby confirms that the shares of Common Stock of Arbor Health Technologies Inc. (CUSIP 039217105) are eligible for deposit and book-entry transfer through the facilities of The Depository Trust Company ("DTC"), a registered clearing agency under Section 17A of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Continental further confirms the following with respect to the DTC eligibility of the Common Stock:
(a) Continental is a participant in DTC's Direct Registration System ("DRS"), which permits the electronic registration of securities in book-entry form directly on the books of the Transfer Agent without the issuance of a physical certificate, and the transfer of such securities between DRS and DTC.
(b) Continental is a participant in DTC's Fast Automated Securities Transfer Program ("FAST"), which allows Continental to act as the custodian of shares on behalf of DTC and to facilitate the electronic movement of securities between DTC's book-entry system and the Transfer Agent's records.
(c) All shares of Common Stock to be issued in the Offering, including the 20,000,000 base offering shares (the "Firm Shares") and up to 3,000,000 additional shares subject to the Underwriters' overallotment option granted pursuant to Section 2 of the Underwriting Agreement (the "Option Shares" and, together with the Firm Shares, the "Offering Shares"), will be issued in book-entry form through DTC and will be eligible for DTC's book-entry settlement system.
(d) The Offering Shares will be registered in the name of Cede & Co., as nominee for DTC, and will be credited to the accounts of DTC participants in accordance with DTC's customary procedures and the rules and regulations applicable thereto.
(e) Continental has made all necessary applications, filings, and arrangements with DTC to ensure the eligibility of the Common Stock for deposit and book-entry transfer through DTC's facilities, and Continental is not aware of any facts, circumstances, or conditions that would cause the Common Stock to become ineligible for such deposit or transfer.
Continental acknowledges that the eligibility of the Common Stock for DTC deposit and book-entry transfer is a condition to the obligations of the Underwriters under the Underwriting Agreement, and Continental has taken, and will continue to take, all actions within its control to maintain such eligibility.
4. FAST Agent Status
Continental Share Services, Inc. hereby confirms that it serves as a FAST agent for DTC with respect to the Common Stock of Arbor Health Technologies Inc. Continental's FAST agent status has been approved by DTC and is currently in effect.
As FAST agent, Continental will maintain a balance certificate registered in the name of Cede & Co., as nominee for DTC, which will reflect the aggregate number of shares of Common Stock held through DTC's book-entry settlement system from time to time. Continental will process all deposits and withdrawals of shares of Common Stock through the FAST system in accordance with DTC's operational procedures and applicable regulations. Continental will adjust the balance certificate promptly and accurately to reflect each such deposit or withdrawal.
In connection with the Closing Date, Continental will coordinate with DTC to ensure the timely crediting of the Offering Shares to the accounts of the several Underwriters, namely:
(i) Whitfield Barrow & Co., LLC;
(ii) Calloway Pierce Securities LLC;
(iii) Velthorn Capital Partners Inc.; and
(iv) Pemberton Wallis LLC,
or to their respective DTC participant accounts, as designated by the Representative, on the Closing Date (February 13, 2024), in each case against payment of the applicable purchase price in accordance with the Underwriting Agreement and DTC's delivery-versus-payment ("DVP") procedures. Continental has confirmed with DTC that all operational and technical preparations necessary for the settlement of the Offering have been completed or are expected to be completed prior to the Closing Date.
5. Closing Mechanics and Delivery
On the Closing Date (February 13, 2024), Continental will cause the following actions to be taken in connection with the settlement of the Offering:
(a) Firm Shares. Continental will cause 20,000,000 shares of Common Stock (the Firm Shares) to be deposited with DTC and credited to the accounts of the Underwriters or their respective DTC participant accounts, as designated by the Representative, against payment of the aggregate purchase price of $376,000,000.00 (Three Hundred Seventy-Six Million Dollars). Such aggregate purchase price reflects a per share purchase price of $18.80, which represents the public offering price of $20.00 per share less the underwriting discount of $1.20 per share (6.0% of the public offering price), as set forth in the Underwriting Agreement. Settlement of the Firm Shares will be effected through DTC's DVP system, with delivery of shares occurring simultaneously with the wire transfer of the aggregate purchase price to the Company's designated account.
(b) Option Shares. Upon any exercise of the overallotment option by the Representative, in whole or in part, in accordance with Section 2 of the Underwriting Agreement, Continental will cause the applicable number of additional shares of Common Stock (up to a maximum of 3,000,000 Option Shares) to be deposited with DTC and credited to the accounts of the Underwriters or their respective DTC participant accounts in the same manner as described in paragraph (a) above. The per share purchase price for any Option Shares shall be $18.80, consistent with the per share purchase price for the Firm Shares. Continental will process the deposit and crediting of any Option Shares promptly following receipt of (i) written notice from the Company confirming the exercise of the overallotment option and the number of Option Shares to be issued, and (ii) an irrevocable authorization from the Company to issue such Option Shares.
Continental will use commercially reasonable efforts to ensure that the deposit and crediting of the Offering Shares through DTC's facilities are completed no later than 10:00 a.m. (Eastern Time) on the Closing Date (or such other time as may be agreed upon by the Company and the Representative). Continental acknowledges the time-sensitive nature of the closing and will have appropriate personnel available throughout the Closing Date to address any issues that may arise in connection with the settlement process.
6. Representations and Confirmations
In connection with the Offering and the matters addressed in this letter, Continental hereby represents, warrants, and confirms to each of the addressees as follows:
(a) Organization and Good Standing. Continental Share Services, Inc. is a corporation duly organized, validly existing, and in good standing under the laws of the State of New York.
(b) Corporate Authority. Continental has all requisite corporate power and authority to act as transfer agent and registrar for the Common Stock of the Company and to perform all duties and obligations contemplated by this letter, the Transfer Agency Agreement, and applicable law and regulation.
(c) SEC Registration. Continental is duly registered as a transfer agent with the SEC pursuant to Section 17A(c) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (SEC File No. 84-04672). Continental's registration as a transfer agent is in full force and effect and has not been revoked, suspended, or made subject to any material conditions or limitations.
(d) Insurance and Bonding. Continental maintains all necessary insurance policies and surety bonding arrangements in accordance with applicable federal and state regulations governing registered transfer agents, including, without limitation, errors and omissions insurance, fidelity bonding, and blanket crime coverage, in each case in amounts that are customary for transfer agents of comparable size and scope of operations.
(e) No Conflicts. The execution and delivery of this letter and the performance by Continental of the actions contemplated herein do not and will not conflict with, violate, or constitute a default under (i) the certificate of incorporation or bylaws of Continental, (ii) any applicable law, rule, regulation, order, judgment, or decree, or (iii) any agreement, contract, or instrument to which Continental is a party or by which it is bound.
(f) Compliance. Continental is in compliance in all material respects with all applicable laws, rules, and regulations governing its activities as a registered transfer agent, including, without limitation, the rules and regulations of the SEC, DTC, and the NYSE, and Continental is not aware of any pending or threatened regulatory action, investigation, or proceeding that would materially impair its ability to perform its obligations in connection with the Offering.
7. Contact Information
For any questions regarding DTC eligibility, book-entry procedures, transfer agent services, or any other matter addressed in this letter, please contact:
Continental Share Services, Inc. 1 Ashbury Asset Advisors Plaza, 30th Floor New York, New York 10004
Attention: Margaret A. Reinhardt, Senior Vice President, Corporate Actions & IPO Services
Telephone: (212) 509-4053
Email: mreinhardt@continentalshareservices.com
Alternate Contact: James W. Coletti, Vice President, DTC Operations Telephone: (212) 509-4071
Email: jcoletti@continentalshareservices.com
Continental will make the above-named individuals, and such other personnel as may be necessary, available on the Closing Date and during the period of the Offering to assist with any matters that may arise in connection with the deposit, transfer, or settlement of the Offering Shares.
8. Reliance
This letter is being furnished solely for the benefit of (i) Arbor Health Technologies Inc., (ii) the several Underwriters named in the Underwriting Agreement dated February 8, 2024, acting through Whitfield Barrow & Co., LLC, as their Representative, and (iii) their respective counsel, namely Calderwood & Harkness LLP (as counsel to the Issuer) and Meridian Hale & Quivorn LLP (as counsel to the Underwriters), in each case in connection with the Offering and the listing of the Common Stock on the New York Stock Exchange. This letter may be relied upon by each of the foregoing addressees and their respective successors and assigns in connection with the transactions contemplated by the Underwriting Agreement.
This letter may be filed as, or referenced in connection with, the closing deliverables required to be delivered under the Underwriting Agreement on the Closing Date. No person or entity other than the addressees listed above (and their respective successors and assigns) shall be entitled to rely upon the statements, representations, or confirmations contained herein, and this letter shall not be construed to create any duty, obligation, or liability on the part of Continental to any such other person or entity.
This letter shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws principles thereof.
We appreciate the opportunity to serve as transfer agent and registrar for the Common Stock of Arbor Health Technologies Inc. and look forward to assisting with the successful completion of the Offering. Please do not hesitate to contact us should you have any questions or require any additional information.
Very truly yours,
CONTINENTAL SHARE SERVICES, INC.
By: ________
Name: Margaret A. Reinhardt
Title: Senior Vice President, Corporate Actions & IPO Services
Enclosures: None
cc:
David Halderman, Chief Financial Officer, Arbor Health Technologies Inc.
Eric Johannsen, Esq., Calderwood & Harkness LLP
Kathryn Brennan, Esq., Meridian Hale & Quivorn LLP
Item | Detail
Security | Common Stock, par value $0.001 per share
CUSIP Number | 039217105
Ticker Symbol | ARHT
Listing Venue | New York Stock Exchange ("NYSE")
Authorized Shares of Common Stock | 400,000,000 shares (as set forth in the Amended and Restated Certificate of Incorporation of the Company, to be filed with the Secretary of State of the State of Delaware on the Closing Date, February 13, 2024)
Shares Outstanding Immediately Prior to the Offering | 80,000,000 shares
Base Offering Shares | 20,000,000 shares
Overallotment Option Shares | Up to 3,000,000 additional shares
Total Shares Outstanding Following the Offering (assuming full exercise of overallotment option) | 103,000,000 shares