1010-00002 · Client 1010 · Closing

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OFFICERS' CERTIFICATE

Delivered Pursuant to Section 7(d) of the Underwriting Agreement

February 13, 2024

This Officers' Certificate (this "Certificate") is delivered pursuant to Section 7(d) of the Underwriting Agreement, dated as of February 8, 2024 (the "Underwriting Agreement"), among Arbor Health Technologies Inc., a Delaware corporation (the "Company"), and Whitfield Barrow & Co., LLC, as representative (the "Representative") of the several underwriters named in Schedule I thereto (the Representative, together with Calloway Pierce Securities LLC, Velthorn Capital Partners Inc., and Pemberton Wallis LLC, collectively, the "Underwriters"). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Underwriting Agreement.

Section 1. Identity and Authority of Certifying Officers

Each of the undersigned hereby certifies, in his capacity as an officer of the Company and not in his individual or personal capacity (except as otherwise provided in Section 9 hereof), as follows:

Dr. Nathaniel Rourke is the Co-Founder, Chairman and Chief Executive Officer of Arbor Health Technologies Inc., and David Halderman is the Chief Financial Officer of Arbor Health Technologies Inc. Each of the undersigned is duly elected, qualified, and acting in his respective capacity as an officer of the Company and is duly authorized to execute and deliver this Certificate on behalf of the Company.

This Certificate is being delivered pursuant to Section 7(d) of the Underwriting Agreement as a condition precedent to the obligations of the Underwriters to purchase the 20,000,000 shares of common stock, par value $0.001 per share (the "Firm Shares"), of the Company at the Closing Date, which Closing Date is February 13, 2024. The delivery of this Certificate is an express condition to the consummation of the transactions contemplated by the Underwriting Agreement, and the Underwriters are entitled to receive this Certificate in connection with the Closing.

The Company's principal executive offices are located at 275 Kendall Avenue, Suite 1400, Cambridge, Massachusetts 02142.

Section 2. Registration Statement and Prospectus Identification

The Company filed a Registration Statement on Form S-1 (File No. 333-276841; SEC CIK Number: 0001987432) with the Securities and Exchange Commission (the "SEC") on January 22, 2024, which Registration Statement was subsequently amended by Amendment No. 1 to Form S-1 filed with the SEC on February 5, 2024 (as so amended, and together with all exhibits thereto and all documents incorporated by reference therein, the "Registration Statement"). The Registration Statement was declared effective by the SEC on February 8, 2024.

The Preliminary Prospectus included as part of the Registration Statement as originally filed on January 22, 2024 set forth an initial estimated price range of $17.00 to $19.00 per share of common stock. Amendment No. 1 to Form S-1, filed on February 5, 2024, revised the estimated price range to $18.00 to $20.00 per share of common stock.

The final prospectus relating to the offering of the Firm Shares (the "Prospectus") was filed with the SEC pursuant to Rule 424(b)(4) under the Securities Act of 1933, as amended (the "Securities Act"), on February 9, 2024. The Prospectus reflects the final public offering price of $20.00 per share of common stock.

The offering contemplated by the Underwriting Agreement (the "Offering") consists of 20,000,000 shares of common stock offered at a price to the public of $20.00 per share, together with an overallotment option granted to the Underwriters to purchase up to an additional 3,000,000 shares of common stock on the terms and subject to the conditions set forth in the Underwriting Agreement.

Section 3. Certification — Accuracy of Representations and Warranties

Each of the undersigned hereby certifies that each of the representations and warranties of the Company contained in the Underwriting Agreement is true and correct in all material respects as of the date of the Underwriting Agreement (February 8, 2024) and as of the Closing Date (February 13, 2024), with the same force and effect as though expressly made on and as of the Closing Date (except for representations and warranties that by their terms speak only as of a specific date, which representations and warranties are true and correct in all material respects as of such specified date).

Without limiting the generality of the foregoing, each of the undersigned specifically certifies the truth and correctness in all material respects, as of the dates indicated above, of each of the following representations and warranties of the Company set forth in the Underwriting Agreement:

(a) Due Incorporation, Valid Existence, and Good Standing. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease, and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus. The Company's Delaware charter filing number is 7149832.

(b) Corporate Power and Authority. The Company has full corporate power and authority to own, lease, and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus, and to enter into and perform its obligations under the Underwriting Agreement and to consummate the transactions contemplated thereby, including, without limitation, the issuance and sale of the Firm Shares.

(c) Due Qualification. The Company is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, including the Commonwealth of Massachusetts, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(d) Due Authorization, Execution, and Delivery of the Underwriting Agreement. The Underwriting Agreement has been duly authorized, executed, and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law).

(e) Authorized Capitalization. The authorized capitalization of the Company consists of (i) 400,000,000 shares of common stock, par value $0.001 per share, and (ii) 50,000,000 shares of preferred stock, par value $0.001 per share. As of immediately prior to the Offering, 80,000,000 shares of common stock were issued and outstanding, and no shares of preferred stock were issued and outstanding. All outstanding shares of common stock have been validly issued, are fully paid and non-assessable, and have not been issued in violation of any preemptive rights, rights of first refusal, or similar rights of any stockholder.

(f) Valid Issuance of Firm Shares. The Firm Shares, when issued and delivered against payment therefor as provided in the Underwriting Agreement, will be duly authorized, validly issued, fully paid, and non-assessable, and the issuance of the Firm Shares will not be subject to any preemptive rights, rights of first refusal, or similar rights of any stockholder of the Company or any other person.

(g) Compliance of Registration Statement and Prospectus with the Securities Act. The Registration Statement and the Prospectus, and any amendments or supplements thereto, comply in all material respects with the requirements of the Securities Act and the rules and regulations of the SEC promulgated thereunder (the "Rules and Regulations"). At the time the Registration Statement became effective, at the time of each amendment thereto, at the date of the Underwriting Agreement, and at the Closing Date, the Registration Statement and the Prospectus complied and comply in all material respects with the Securities Act and the Rules and Regulations.

(h) No Material Misstatement or Omission. The Registration Statement, as of its effective date, did not contain, and as of the Closing Date does not contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus, as of its date and as of the Closing Date, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(i) Financial Statements. The financial statements and the related notes thereto included in the Registration Statement and the Prospectus present fairly in all material respects the financial position of the Company as of the dates indicated and the results of its operations and changes in its cash flows for the periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles in the United States ("GAAP") applied on a consistent basis throughout the periods involved, except as may be otherwise specified in such financial statements or the notes thereto, and have been audited by Kellerman & Associates LLP, an independent registered public accounting firm.

(j) Absence of Undisclosed Material Liabilities. Except as disclosed in the Registration Statement and the Prospectus, the Company has no material liabilities or obligations, direct or contingent, that are not described in or contemplated by the Registration Statement and the Prospectus, other than liabilities incurred in the ordinary course of business since December 31, 2023 that are not, individually or in the aggregate, material to the Company.

(k) No Undisclosed Legal or Governmental Proceedings. There are no legal or governmental proceedings pending or, to the knowledge of the undersigned, threatened against the Company that are required to be disclosed in the Registration Statement and the Prospectus and that are not so disclosed. There are no contracts or documents of the Company that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that have not been described or filed as required.

(l) No Violations of Organizational Documents. The Company is not in violation of any provision of its Amended and Restated Certificate of Incorporation (as filed with the Secretary of State of the State of Delaware on February 8, 2024 and effective immediately prior to the closing of the Offering) or its Amended and Restated Bylaws (as adopted by the Board of Directors of the Company on February 7, 2024).

(m) No Conflicts or Defaults Under Material Agreements. Neither the execution and delivery of the Underwriting Agreement nor the issuance and sale of the Firm Shares, nor the consummation of any other of the transactions contemplated by the Underwriting Agreement, nor the fulfillment of the terms thereof, will result in a breach or violation of, or conflict with, or constitute a default under (or an event that, with notice or lapse of time or both, would constitute a default under), or result in the creation or imposition of any lien, charge, or encumbrance upon any property or assets of the Company pursuant to, any material agreement, instrument, or obligation to which the Company is a party or by which the Company or any of its properties may be bound, including, without limitation, the Credit Agreement dated as of March 15, 2022, as amended by the First Amendment thereto dated as of January 18, 2024, among the Company, as borrower, Keypoint National Bank, N.A., as Administrative Agent, and Stonemill Capital Bank, as Lender (the "Credit Agreement"), or any order, judgment, decree, statute, rule, or regulation applicable to the Company of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company.

(n) Governmental Permits, Licenses, and Authorizations. The Company possesses all governmental licenses, permits, certificates, consents, orders, approvals, and other authorizations necessary for the conduct of its business as described in the Registration Statement and the Prospectus, except where the failure to possess any such license, permit, certificate, consent, order, approval, or authorization would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and the Company has not received any notice of any proceeding relating to the revocation, suspension, or modification of any such license, permit, certificate, consent, order, approval, or authorization.

(o) Tax Compliance. The Company has filed all federal, state, local, and foreign tax returns required to be filed through the date hereof (or has obtained extensions thereof), has paid all taxes shown to be due and payable thereon, and has no knowledge of any tax deficiency that has been or might reasonably be expected to be asserted or threatened against the Company that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company's federal employer identification number is 47-3891205.

(p) Insurance Coverage. The Company maintains insurance of the types and in the amounts that the Company reasonably believes is adequate for its business, including, without limitation, a directors' and officers' liability insurance program, all of which insurance is in full force and effect as of the Closing Date.

(q) Equity Incentive Plans. The 2024 Equity Incentive Plan and the 2024 Employee Stock Purchase Plan have been duly and validly authorized and adopted by all necessary corporate action of the Company, including approval by the Board of Directors and, to the extent required, the stockholders of the Company, and are described in all material respects in the Registration Statement and the Prospectus.

(r) NYSE Listing Compliance. The shares of common stock of the Company (including the Firm Shares) have been approved for listing on the New York Stock Exchange under the ticker symbol "ARHT," subject only to official notice of issuance, and the Company is in compliance in all material respects with all applicable listing standards and requirements of the New York Stock Exchange.

Section 4. Certification — Compliance with Covenants

Each of the undersigned hereby certifies that the Company has performed and complied in all material respects with all covenants, agreements, and conditions required by the Underwriting Agreement to be performed or complied with by the Company at or prior to the Closing Date. Without limiting the generality of the foregoing, each of the undersigned specifically certifies the Company's compliance with the following covenants and obligations:

(a) Filing of Final Prospectus. The Company duly filed the Final Prospectus (the Prospectus) with the SEC pursuant to Rule 424(b)(4) under the Securities Act on February 9, 2024, within the time period required by Rule 424(b) under the Securities Act.

(b) Delivery of Registration Statement and Prospectus. The Company has delivered, or caused to be delivered, to the Underwriters the required number of copies of the Registration Statement, each amendment thereto, the Prospectus, and any amendments or supplements to the Prospectus, including any documents incorporated by reference therein, in each case as required by the Underwriting Agreement.

(c) No Unapproved Amendments or Supplements. The Company has not filed any amendment or supplement to the Registration Statement or the Prospectus without the prior consent of the Representative (Whitfield Barrow & Co., LLC), which consent has not been unreasonably withheld, conditioned, or delayed.

(d) Compliance with Undertakings. The Company has complied with all undertakings contained in the Registration Statement, including Item 17 undertakings relating to the filing of post-effective amendments, the filing of supplements, and the delivery of the Prospectus.

(e) SEC Filing Fees. The Company has paid or has made provision for the payment of all filing fees required to be paid to the SEC in connection with the Registration Statement and the Prospectus, in accordance with Rule 456(b) and Rule 457 under the Securities Act.

(f) NYSE Listing Application. The Company has duly applied for listing of the shares of common stock (including the Firm Shares and the shares of common stock subject to the Underwriters' overallotment option) on the New York Stock Exchange and has received approval for listing of such shares on the New York Stock Exchange, subject only to official notice of issuance.

(g) Transfer Agent and Registrar. The Company has duly engaged Continental Share Services, Inc. as transfer agent and registrar for the shares of common stock (CUSIP: 039217105), and such engagement is in full force and effect as of the Closing Date.

(h) D&O Insurance. The Company has maintained, and as of the Closing Date continues to maintain, directors' and officers' liability insurance coverage through Northbridge Specialty Insurance Company (primary layer) and such excess carriers as are described in the Prospectus, in amounts and with coverage terms that the Company and the Board of Directors of the Company reasonably believe to be adequate and customary for companies similarly situated.

(i) Lock-Up Agreements. Each of the Company's directors, executive officers, and holders of one percent (1%) or more of the pre-IPO outstanding shares of common stock has duly executed and delivered to the Representative a lock-up agreement in the form required by the Underwriting Agreement (collectively, the "Lock-Up Agreements"), pursuant to which each such person has agreed not to, directly or indirectly, offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale, or otherwise dispose of any shares of common stock or any securities convertible into or exercisable or exchangeable for shares of common stock, for a period of 180 days from February 8, 2024 (such period expiring on August 6, 2024), without the prior written consent of the Representative. Approximately 45 signatories have executed Lock-Up Agreements, and such Lock-Up Agreements cover approximately 80,000,000 pre-IPO shares of common stock. To the knowledge of the undersigned, all such Lock-Up Agreements remain in full force and effect as of the Closing Date and no party thereto has sought or been granted a waiver or release therefrom.

(j) Use of Proceeds. The Company intends to apply the net proceeds of the Offering as described in the Prospectus under the caption "Use of Proceeds," including the application of approximately $65,000,000 for the repayment of outstanding borrowings under the revolving credit facility established pursuant to the Credit Agreement with Keypoint National Bank, N.A., as Administrative Agent. The Company has no present intention to deviate in any material respect from the use of proceeds as described in the Prospectus.

Section 5. Certification — Effectiveness of Registration Statement

Each of the undersigned hereby certifies as follows with respect to the effectiveness of the Registration Statement:

(a) The Registration Statement on Form S-1 (File No. 333-276841) became effective under the Securities Act of 1933, as amended, on February 8, 2024.

(b) As of the date hereof and as of the Closing Date, no stop order suspending the effectiveness of the Registration Statement has been issued by the SEC, and no proceedings for that purpose have been instituted or, to the knowledge of the undersigned, are pending before or threatened by the SEC.

(c) As of the date hereof and as of the Closing Date, no order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus has been issued by the SEC, and no proceedings for that purpose have been instituted or, to the knowledge of the undersigned, are pending before or threatened by the SEC.

Section 6. Certification — No Material Adverse Effect

Each of the undersigned hereby certifies that, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Effect (as such term is defined in the Underwriting Agreement) on the business, financial condition, results of operations, properties, or prospects of the Company, whether or not arising in the ordinary course of business.

Each of the undersigned further certifies that, since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in or contemplated by the Registration Statement and the Prospectus:

(a) The Company has not incurred any material liabilities or obligations, whether direct or contingent, outside the ordinary course of business, that are not reflected in or contemplated by the Registration Statement or the Prospectus.

(b) There has been no material change in the capital stock of the Company (other than the issuance of the Firm Shares in the Offering and the filing of the Company's Amended and Restated Certificate of Incorporation in connection therewith), no material change in the outstanding long-term or short-term indebtedness of the Company, and no dividend or distribution of any kind has been declared, set aside, paid, or made by the Company on or in respect of any class of its capital stock.

(c) The Company's financial performance for the fiscal year ended December 31, 2023, as described in the Prospectus, reflected revenue of $612.4 million, Adjusted EBITDA of $138.7 million, net income of $41.3 million, and approximately 3,400 employees as of December 31, 2023. Since December 31, 2023, there has been no material adverse change in such financial metrics or in the Company's business operations, financial position, or results of operations that is not described in the Registration Statement or the Prospectus.

(d) There has been no material adverse change in the general affairs, management, financial position, stockholders' equity, or results of operations of the Company, whether or not arising in the ordinary course of business, from the latest dates as of which such matters are set forth in the Registration Statement and the Prospectus.

Section 7. Certification — No Material Misstatement or Omission

Each of the undersigned hereby certifies as follows:

(a) The Registration Statement, as of its effective date (February 8, 2024), did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.

(b) The Prospectus, as of its date (February 9, 2024) and as of the Closing Date (February 13, 2024), does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(c) Any Issuer Free Writing Prospectus (as defined in Rule 433 under the Securities Act) issued by or on behalf of the Company, when taken together with the Prospectus, did not and does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

Section 8. Additional Certifications

Each of the undersigned hereby further certifies as follows:

(a) Satisfaction of Conditions Precedent. All conditions precedent to the obligations of the Underwriters set forth in Section 7 of the Underwriting Agreement relating to actions to be taken or conditions to be fulfilled by the Company on or before the Closing Date have been duly satisfied in all material respects as of the Closing Date.

(b) Further Documents and Information. The Company has furnished or caused to be furnished to the Representative all such further documents, certificates, and information as the Representative has reasonably requested pursuant to the Underwriting Agreement, and none of such documents, certificates, or information contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(c) Delivery of Closing Deliverables. The Company confirms that the following closing deliverables have been delivered or are being delivered simultaneously herewith to the Representative on behalf of the Underwriters in connection with the Closing:

(i) Legal opinions from Calderwood & Harkness LLP, counsel to the Company, with offices at 125 Broad Street, New York, New York 10004, in form and substance satisfactory to the Representative and its counsel;

(ii) Comfort letters, dated as of the date of the Underwriting Agreement and as of the Closing Date, from Kellerman & Associates LLP, independent registered public accounting firm, with offices at 345 Park Avenue, New York, New York 10154, in form and substance satisfactory to the Representative;

(iii) A Secretary's Certificate from Rachel Moynihan, General Counsel and Corporate Secretary of the Company, certifying as to, among other things, the Company's Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws, and resolutions of the Board of Directors authorizing the Offering and the transactions contemplated by the Underwriting Agreement;

(iv) A certificate of good standing (or its equivalent) for the Company issued by the Secretary of State of the State of Delaware, dated within five (5) business days of the Closing Date;

(v) A certificate of good standing (or its equivalent) for the Company issued by the Secretary of the Commonwealth of Massachusetts, dated within five (5) business days of the Closing Date;

(vi) Confirmation from Continental Share Services, Inc. of the eligibility of the shares of common stock (including the Firm Shares) for deposit and book-entry transfer through the facilities of The Depository Trust Company ("DTC");

(vii) A letter from the Financial Industry Regulatory Authority, Inc. ("FINRA") confirming that FINRA has no objection to the terms and arrangements of the underwriting of the Offering; and

(viii) A letter from the New York Stock Exchange confirming approval for the listing of the shares of common stock (including the Firm Shares and the shares of common stock subject to the Underwriters' overallotment option) on the New York Stock Exchange under the ticker symbol "ARHT," subject only to official notice of issuance.

Section 9. Limitation and Reliance

This Certificate is being delivered to the Underwriters solely in connection with the Closing of the sale of the Firm Shares pursuant to the Underwriting Agreement and is solely for the benefit of the Underwriters. No other person or entity is entitled to rely on this Certificate for any purpose. The Underwriters are entitled to rely upon this Certificate and the certifications and statements made herein for purposes of satisfying the condition set forth in Section 7(d) of the Underwriting Agreement.

This Certificate is given on behalf of the Company and not in the personal capacity of the undersigned officers, except to the extent that the undersigned officers are certifying herein as to matters within their actual knowledge (including, without limitation, the certifications set forth in Section 5 and Section 7 hereof with respect to knowledge of SEC proceedings). The undersigned officers have made such investigations and inquiries as they have deemed necessary and appropriate in connection with the preparation and delivery of this Certificate, including consultations with the Company's internal and external counsel, independent auditors, and other advisors, and have relied, to the extent they deemed appropriate, upon certificates, reports, and statements of officers and employees of the Company and upon the advice and opinions of the Company's legal counsel and independent auditors.

Nothing in this Certificate shall be deemed to limit, expand, or otherwise modify any representation, warranty, covenant, or agreement of the Company set forth in the Underwriting Agreement, or any rights or remedies of the Underwriters under the Underwriting Agreement or otherwise.

IN WITNESS WHEREOF, each of the undersigned has executed this Officers' Certificate as of the date first set forth above.

ARBOR HEALTH TECHNOLOGIES INC.

By: ________

Name: Dr. Nathaniel Rourke

Title: Co-Founder, Chairman and Chief Executive Officer

Date: February 13, 2024

ARBOR HEALTH TECHNOLOGIES INC.

By: ________

Name: David Halderman

Title: Chief Financial Officer

Date: February 13, 2024

OFFICERS' CERTIFICATE
Delivered Pursuant to Section 7(d) of the Underwriting Agreement
February 13, 2024
This Officers' Certificate (this "Certificate") is delivered pursuant to Section 7(d) of the Underwriting Agreement, dated as of February 8, 2024 (the "Underwriting Agreement"), among Arbor Health Technologies Inc., a Delaware corporation (the "Company"), and Whitfield Barrow & Co., LLC, as representative (the "Representative") of the several underwriters named in Schedule I thereto (the Representative, together with Calloway Pierce Securities LLC, Velthorn Capital Partners Inc., and Pemberton Wallis LLC, collectively, the "Underwriters"). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Underwriting Agreement.
Section 1. Identity and Authority of Certifying Officers
Each of the undersigned hereby certifies, in his capacity as an officer of the Company and not in his individual or personal capacity (except as otherwise provided in Section 9 hereof), as follows:
Dr. Nathaniel Rourke is the Co-Founder, Chairman and Chief Executive Officer of Arbor Health Technologies Inc., and David Halderman is the Chief Financial Officer of Arbor Health Technologies Inc. Each of the undersigned is duly elected, qualified, and acting in his respective capacity as an officer of the Company and is duly authorized to execute and deliver this Certificate on behalf of the Company.
This Certificate is being delivered pursuant to Section 7(d) of the Underwriting Agreement as a condition precedent to the obligations of the Underwriters to purchase the 20,000,000 shares of common stock, par value $0.001 per share (the "Firm Shares"), of the Company at the Closing Date, which Closing Date is February 13, 2024. The delivery of this Certificate is an express condition to the consummation of the transactions contemplated by the Underwriting Agreement, and the Underwriters are entitled to receive this Certificate in connection with the Closing.
The Company's principal executive offices are located at 275 Kendall Avenue, Suite 1400, Cambridge, Massachusetts 02142.
Section 2. Registration Statement and Prospectus Identification
The Company filed a Registration Statement on Form S-1 (File No. 333-276841; SEC CIK Number: 0001987432) with the Securities and Exchange Commission (the "SEC") on January 22, 2024, which Registration Statement was subsequently amended by Amendment No. 1 to Form S-1 filed with the SEC on February 5, 2024 (as so amended, and together with all exhibits thereto and all documents incorporated by reference therein, the "Registration Statement"). The Registration Statement was declared effective by the SEC on February 8, 2024.
The Preliminary Prospectus included as part of the Registration Statement as originally filed on January 22, 2024 set forth an initial estimated price range of $17.00 to $19.00 per share of common stock. Amendment No. 1 to Form S-1, filed on February 5, 2024, revised the estimated price range to $18.00 to $20.00 per share of common stock.
The final prospectus relating to the offering of the Firm Shares (the "Prospectus") was filed with the SEC pursuant to Rule 424(b)(4) under the Securities Act of 1933, as amended (the "Securities Act"), on February 9, 2024. The Prospectus reflects the final public offering price of $20.00 per share of common stock.
The offering contemplated by the Underwriting Agreement (the "Offering") consists of 20,000,000 shares of common stock offered at a price to the public of $20.00 per share, together with an overallotment option granted to the Underwriters to purchase up to an additional 3,000,000 shares of common stock on the terms and subject to the conditions set forth in the Underwriting Agreement.
Section 3. Certification — Accuracy of Representations and Warranties
Each of the undersigned hereby certifies that each of the representations and warranties of the Company contained in the Underwriting Agreement is true and correct in all material respects as of the date of the Underwriting Agreement (February 8, 2024) and as of the Closing Date (February 13, 2024), with the same force and effect as though expressly made on and as of the Closing Date (except for representations and warranties that by their terms speak only as of a specific date, which representations and warranties are true and correct in all material respects as of such specified date).
Without limiting the generality of the foregoing, each of the undersigned specifically certifies the truth and correctness in all material respects, as of the dates indicated above, of each of the following representations and warranties of the Company set forth in the Underwriting Agreement:
(a) Due Incorporation, Valid Existence, and Good Standing. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease, and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus. The Company's Delaware charter filing number is 7149832.
(b) Corporate Power and Authority. The Company has full corporate power and authority to own, lease, and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus, and to enter into and perform its obligations under the Underwriting Agreement and to consummate the transactions contemplated thereby, including, without limitation, the issuance and sale of the Firm Shares.
(c) Due Qualification. The Company is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, including the Commonwealth of Massachusetts, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) Due Authorization, Execution, and Delivery of the Underwriting Agreement. The Underwriting Agreement has been duly authorized, executed, and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law).
(e) Authorized Capitalization. The authorized capitalization of the Company consists of (i) 400,000,000 shares of common stock, par value $0.001 per share, and (ii) 50,000,000 shares of preferred stock, par value $0.001 per share. As of immediately prior to the Offering, 80,000,000 shares of common stock were issued and outstanding, and no shares of preferred stock were issued and outstanding. All outstanding shares of common stock have been validly issued, are fully paid and non-assessable, and have not been issued in violation of any preemptive rights, rights of first refusal, or similar rights of any stockholder.
(f) Valid Issuance of Firm Shares. The Firm Shares, when issued and delivered against payment therefor as provided in the Underwriting Agreement, will be duly authorized, validly issued, fully paid, and non-assessable, and the issuance of the Firm Shares will not be subject to any preemptive rights, rights of first refusal, or similar rights of any stockholder of the Company or any other person.
(g) Compliance of Registration Statement and Prospectus with the Securities Act. The Registration Statement and the Prospectus, and any amendments or supplements thereto, comply in all material respects with the requirements of the Securities Act and the rules and regulations of the SEC promulgated thereunder (the "Rules and Regulations"). At the time the Registration Statement became effective, at the time of each amendment thereto, at the date of the Underwriting Agreement, and at the Closing Date, the Registration Statement and the Prospectus complied and comply in all material respects with the Securities Act and the Rules and Regulations.
(h) No Material Misstatement or Omission. The Registration Statement, as of its effective date, did not contain, and as of the Closing Date does not contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus, as of its date and as of the Closing Date, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(i) Financial Statements. The financial statements and the related notes thereto included in the Registration Statement and the Prospectus present fairly in all material respects the financial position of the Company as of the dates indicated and the results of its operations and changes in its cash flows for the periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles in the United States ("GAAP") applied on a consistent basis throughout the periods involved, except as may be otherwise specified in such financial statements or the notes thereto, and have been audited by Kellerman & Associates LLP, an independent registered public accounting firm.
(j) Absence of Undisclosed Material Liabilities. Except as disclosed in the Registration Statement and the Prospectus, the Company has no material liabilities or obligations, direct or contingent, that are not described in or contemplated by the Registration Statement and the Prospectus, other than liabilities incurred in the ordinary course of business since December 31, 2023 that are not, individually or in the aggregate, material to the Company.
(k) No Undisclosed Legal or Governmental Proceedings. There are no legal or governmental proceedings pending or, to the knowledge of the undersigned, threatened against the Company that are required to be disclosed in the Registration Statement and the Prospectus and that are not so disclosed. There are no contracts or documents of the Company that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that have not been described or filed as required.
(l) No Violations of Organizational Documents. The Company is not in violation of any provision of its Amended and Restated Certificate of Incorporation (as filed with the Secretary of State of the State of Delaware on February 8, 2024 and effective immediately prior to the closing of the Offering) or its Amended and Restated Bylaws (as adopted by the Board of Directors of the Company on February 7, 2024).
(m) No Conflicts or Defaults Under Material Agreements. Neither the execution and delivery of the Underwriting Agreement nor the issuance and sale of the Firm Shares, nor the consummation of any other of the transactions contemplated by the Underwriting Agreement, nor the fulfillment of the terms thereof, will result in a breach or violation of, or conflict with, or constitute a default under (or an event that, with notice or lapse of time or both, would constitute a default under), or result in the creation or imposition of any lien, charge, or encumbrance upon any property or assets of the Company pursuant to, any material agreement, instrument, or obligation to which the Company is a party or by which the Company or any of its properties may be bound, including, without limitation, the Credit Agreement dated as of March 15, 2022, as amended by the First Amendment thereto dated as of January 18, 2024, among the Company, as borrower, Keypoint National Bank, N.A., as Administrative Agent, and Stonemill Capital Bank, as Lender (the "Credit Agreement"), or any order, judgment, decree, statute, rule, or regulation applicable to the Company of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Company.
(n) Governmental Permits, Licenses, and Authorizations. The Company possesses all governmental licenses, permits, certificates, consents, orders, approvals, and other authorizations necessary for the conduct of its business as described in the Registration Statement and the Prospectus, except where the failure to possess any such license, permit, certificate, consent, order, approval, or authorization would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and the Company has not received any notice of any proceeding relating to the revocation, suspension, or modification of any such license, permit, certificate, consent, order, approval, or authorization.
(o) Tax Compliance. The Company has filed all federal, state, local, and foreign tax returns required to be filed through the date hereof (or has obtained extensions thereof), has paid all taxes shown to be due and payable thereon, and has no knowledge of any tax deficiency that has been or might reasonably be expected to be asserted or threatened against the Company that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company's federal employer identification number is 47-3891205.
(p) Insurance Coverage. The Company maintains insurance of the types and in the amounts that the Company reasonably believes is adequate for its business, including, without limitation, a directors' and officers' liability insurance program, all of which insurance is in full force and effect as of the Closing Date.
(q) Equity Incentive Plans. The 2024 Equity Incentive Plan and the 2024 Employee Stock Purchase Plan have been duly and validly authorized and adopted by all necessary corporate action of the Company, including approval by the Board of Directors and, to the extent required, the stockholders of the Company, and are described in all material respects in the Registration Statement and the Prospectus.
(r) NYSE Listing Compliance. The shares of common stock of the Company (including the Firm Shares) have been approved for listing on the New York Stock Exchange under the ticker symbol "ARHT," subject only to official notice of issuance, and the Company is in compliance in all material respects with all applicable listing standards and requirements of the New York Stock Exchange.
Section 4. Certification — Compliance with Covenants
Each of the undersigned hereby certifies that the Company has performed and complied in all material respects with all covenants, agreements, and conditions required by the Underwriting Agreement to be performed or complied with by the Company at or prior to the Closing Date. Without limiting the generality of the foregoing, each of the undersigned specifically certifies the Company's compliance with the following covenants and obligations:
(a) Filing of Final Prospectus. The Company duly filed the Final Prospectus (the Prospectus) with the SEC pursuant to Rule 424(b)(4) under the Securities Act on February 9, 2024, within the time period required by Rule 424(b) under the Securities Act.
(b) Delivery of Registration Statement and Prospectus. The Company has delivered, or caused to be delivered, to the Underwriters the required number of copies of the Registration Statement, each amendment thereto, the Prospectus, and any amendments or supplements to the Prospectus, including any documents incorporated by reference therein, in each case as required by the Underwriting Agreement.
(c) No Unapproved Amendments or Supplements. The Company has not filed any amendment or supplement to the Registration Statement or the Prospectus without the prior consent of the Representative (Whitfield Barrow & Co., LLC), which consent has not been unreasonably withheld, conditioned, or delayed.
(d) Compliance with Undertakings. The Company has complied with all undertakings contained in the Registration Statement, including Item 17 undertakings relating to the filing of post-effective amendments, the filing of supplements, and the delivery of the Prospectus.
(e) SEC Filing Fees. The Company has paid or has made provision for the payment of all filing fees required to be paid to the SEC in connection with the Registration Statement and the Prospectus, in accordance with Rule 456(b) and Rule 457 under the Securities Act.
(f) NYSE Listing Application. The Company has duly applied for listing of the shares of common stock (including the Firm Shares and the shares of common stock subject to the Underwriters' overallotment option) on the New York Stock Exchange and has received approval for listing of such shares on the New York Stock Exchange, subject only to official notice of issuance.
(g) Transfer Agent and Registrar. The Company has duly engaged Continental Share Services, Inc. as transfer agent and registrar for the shares of common stock (CUSIP: 039217105), and such engagement is in full force and effect as of the Closing Date.
(h) D&O Insurance. The Company has maintained, and as of the Closing Date continues to maintain, directors' and officers' liability insurance coverage through Northbridge Specialty Insurance Company (primary layer) and such excess carriers as are described in the Prospectus, in amounts and with coverage terms that the Company and the Board of Directors of the Company reasonably believe to be adequate and customary for companies similarly situated.
(i) Lock-Up Agreements. Each of the Company's directors, executive officers, and holders of one percent (1%) or more of the pre-IPO outstanding shares of common stock has duly executed and delivered to the Representative a lock-up agreement in the form required by the Underwriting Agreement (collectively, the "Lock-Up Agreements"), pursuant to which each such person has agreed not to, directly or indirectly, offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale, or otherwise dispose of any shares of common stock or any securities convertible into or exercisable or exchangeable for shares of common stock, for a period of 180 days from February 8, 2024 (such period expiring on August 6, 2024), without the prior written consent of the Representative. Approximately 45 signatories have executed Lock-Up Agreements, and such Lock-Up Agreements cover approximately 80,000,000 pre-IPO shares of common stock. To the knowledge of the undersigned, all such Lock-Up Agreements remain in full force and effect as of the Closing Date and no party thereto has sought or been granted a waiver or release therefrom.
(j) Use of Proceeds. The Company intends to apply the net proceeds of the Offering as described in the Prospectus under the caption "Use of Proceeds," including the application of approximately $65,000,000 for the repayment of outstanding borrowings under the revolving credit facility established pursuant to the Credit Agreement with Keypoint National Bank, N.A., as Administrative Agent. The Company has no present intention to deviate in any material respect from the use of proceeds as described in the Prospectus.
Section 5. Certification — Effectiveness of Registration Statement
Each of the undersigned hereby certifies as follows with respect to the effectiveness of the Registration Statement:
(a) The Registration Statement on Form S-1 (File No. 333-276841) became effective under the Securities Act of 1933, as amended, on February 8, 2024.
(b) As of the date hereof and as of the Closing Date, no stop order suspending the effectiveness of the Registration Statement has been issued by the SEC, and no proceedings for that purpose have been instituted or, to the knowledge of the undersigned, are pending before or threatened by the SEC.
(c) As of the date hereof and as of the Closing Date, no order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus has been issued by the SEC, and no proceedings for that purpose have been instituted or, to the knowledge of the undersigned, are pending before or threatened by the SEC.
Section 6. Certification — No Material Adverse Effect
Each of the undersigned hereby certifies that, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Effect (as such term is defined in the Underwriting Agreement) on the business, financial condition, results of operations, properties, or prospects of the Company, whether or not arising in the ordinary course of business.
Each of the undersigned further certifies that, since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in or contemplated by the Registration Statement and the Prospectus:
(a) The Company has not incurred any material liabilities or obligations, whether direct or contingent, outside the ordinary course of business, that are not reflected in or contemplated by the Registration Statement or the Prospectus.
(b) There has been no material change in the capital stock of the Company (other than the issuance of the Firm Shares in the Offering and the filing of the Company's Amended and Restated Certificate of Incorporation in connection therewith), no material change in the outstanding long-term or short-term indebtedness of the Company, and no dividend or distribution of any kind has been declared, set aside, paid, or made by the Company on or in respect of any class of its capital stock.
(c) The Company's financial performance for the fiscal year ended December 31, 2023, as described in the Prospectus, reflected revenue of $612.4 million, Adjusted EBITDA of $138.7 million, net income of $41.3 million, and approximately 3,400 employees as of December 31, 2023. Since December 31, 2023, there has been no material adverse change in such financial metrics or in the Company's business operations, financial position, or results of operations that is not described in the Registration Statement or the Prospectus.
(d) There has been no material adverse change in the general affairs, management, financial position, stockholders' equity, or results of operations of the Company, whether or not arising in the ordinary course of business, from the latest dates as of which such matters are set forth in the Registration Statement and the Prospectus.
Section 7. Certification — No Material Misstatement or Omission
Each of the undersigned hereby certifies as follows:
(a) The Registration Statement, as of its effective date (February 8, 2024), did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(b) The Prospectus, as of its date (February 9, 2024) and as of the Closing Date (February 13, 2024), does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Any Issuer Free Writing Prospectus (as defined in Rule 433 under the Securities Act) issued by or on behalf of the Company, when taken together with the Prospectus, did not and does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Section 8. Additional Certifications
Each of the undersigned hereby further certifies as follows:
(a) Satisfaction of Conditions Precedent. All conditions precedent to the obligations of the Underwriters set forth in Section 7 of the Underwriting Agreement relating to actions to be taken or conditions to be fulfilled by the Company on or before the Closing Date have been duly satisfied in all material respects as of the Closing Date.
(b) Further Documents and Information. The Company has furnished or caused to be furnished to the Representative all such further documents, certificates, and information as the Representative has reasonably requested pursuant to the Underwriting Agreement, and none of such documents, certificates, or information contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Delivery of Closing Deliverables. The Company confirms that the following closing deliverables have been delivered or are being delivered simultaneously herewith to the Representative on behalf of the Underwriters in connection with the Closing:
(i) Legal opinions from Calderwood & Harkness LLP, counsel to the Company, with offices at 125 Broad Street, New York, New York 10004, in form and substance satisfactory to the Representative and its counsel;
(ii) Comfort letters, dated as of the date of the Underwriting Agreement and as of the Closing Date, from Kellerman & Associates LLP, independent registered public accounting firm, with offices at 345 Park Avenue, New York, New York 10154, in form and substance satisfactory to the Representative;
(iii) A Secretary's Certificate from Rachel Moynihan, General Counsel and Corporate Secretary of the Company, certifying as to, among other things, the Company's Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws, and resolutions of the Board of Directors authorizing the Offering and the transactions contemplated by the Underwriting Agreement;
(iv) A certificate of good standing (or its equivalent) for the Company issued by the Secretary of State of the State of Delaware, dated within five (5) business days of the Closing Date;
(v) A certificate of good standing (or its equivalent) for the Company issued by the Secretary of the Commonwealth of Massachusetts, dated within five (5) business days of the Closing Date;
(vi) Confirmation from Continental Share Services, Inc. of the eligibility of the shares of common stock (including the Firm Shares) for deposit and book-entry transfer through the facilities of The Depository Trust Company ("DTC");
(vii) A letter from the Financial Industry Regulatory Authority, Inc. ("FINRA") confirming that FINRA has no objection to the terms and arrangements of the underwriting of the Offering; and
(viii) A letter from the New York Stock Exchange confirming approval for the listing of the shares of common stock (including the Firm Shares and the shares of common stock subject to the Underwriters' overallotment option) on the New York Stock Exchange under the ticker symbol "ARHT," subject only to official notice of issuance.
Section 9. Limitation and Reliance
This Certificate is being delivered to the Underwriters solely in connection with the Closing of the sale of the Firm Shares pursuant to the Underwriting Agreement and is solely for the benefit of the Underwriters. No other person or entity is entitled to rely on this Certificate for any purpose. The Underwriters are entitled to rely upon this Certificate and the certifications and statements made herein for purposes of satisfying the condition set forth in Section 7(d) of the Underwriting Agreement.
This Certificate is given on behalf of the Company and not in the personal capacity of the undersigned officers, except to the extent that the undersigned officers are certifying herein as to matters within their actual knowledge (including, without limitation, the certifications set forth in Section 5 and Section 7 hereof with respect to knowledge of SEC proceedings). The undersigned officers have made such investigations and inquiries as they have deemed necessary and appropriate in connection with the preparation and delivery of this Certificate, including consultations with the Company's internal and external counsel, independent auditors, and other advisors, and have relied, to the extent they deemed appropriate, upon certificates, reports, and statements of officers and employees of the Company and upon the advice and opinions of the Company's legal counsel and independent auditors.
Nothing in this Certificate shall be deemed to limit, expand, or otherwise modify any representation, warranty, covenant, or agreement of the Company set forth in the Underwriting Agreement, or any rights or remedies of the Underwriters under the Underwriting Agreement or otherwise.
IN WITNESS WHEREOF, each of the undersigned has executed this Officers' Certificate as of the date first set forth above.
ARBOR HEALTH TECHNOLOGIES INC.
By: ________
Name: Dr. Nathaniel Rourke
Title: Co-Founder, Chairman and Chief Executive Officer
Date: February 13, 2024
ARBOR HEALTH TECHNOLOGIES INC.
By: ________
Name: David Halderman
Title: Chief Financial Officer
Date: February 13, 2024

OFFICERS' CERTIFICATE

ARBOR HEALTH TECHNOLOGIES INC.

ARBOR HEALTH TECHNOLOGIES INC.

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