Eric, Theodore,
As you know, tomorrow (February 13, 2024) is the base offering closing date for the Arbor Health Technologies, Inc. IPO (20,000,000 shares of common stock at $20.00 per share; NYSE: ARHT; SEC File No. 333-276841). This email provides a comprehensive status report on all closing deliverables under the Underwriting Agreement dated February 8, 2024. Please see action items for each of you at the bottom.
**1. Overall Status Summary**
The vast majority of closing deliverables are in hand or confirmed for delivery tomorrow morning. The master closing checklist (closing-checklist-base-offering.xlsx) — attached and also available on the shared deal workspace — has been updated as of this evening and reflects current status for all items.
We have been coordinating with the following counterparties, and all are tracking for closing:
- Meridian Hale & Quivorn LLP (Graham Neville / Kathryn Brennan) — underwriters' counsel - Kellerman & Associates (Richard Olander / Sonia Melendez) — auditors - Continental Share Services — transfer agent - Arbor Health in-house (Rachel Moynihan, General Counsel; David Halderman, CFO)
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**2. Items Received and Confirmed**
**(a) Good Standing Certificates**
- Certificate of Good Standing — Delaware Secretary of State: Received, dated February 9, 2024 (within 5 business days of closing). In order. - Certificate of Good Standing — Massachusetts Secretary of the Commonwealth: Received, dated February 8, 2024. In order.
Both will be included in the closing set.
**(b) Comfort Letters — Kellerman & Associates**
- Initial comfort letter (pricing date, February 8, 2024): Previously received and reviewed; no issues identified. - Bring-down comfort letter (closing date, February 13, 2024): Kellerman has confirmed delivery tomorrow morning prior to closing. Sonia Melendez confirmed via phone at 6:30 PM this evening that the bring-down cut-off procedures are complete and no material changes to specified financial items were identified. We expect the final executed bring-down letter by 8:00 AM tomorrow.
**(c) Lock-Up Agreements**
- All 45 lock-up agreements have been executed and received by Whitfield Barrow & Co., as Representative. - The lock-up execution tracker (lock-up-execution-tracker.xlsx) has been updated and is available on the deal workspace — reflects 100% completion. - Lock-up period: 180 days from February 8, 2024 (date of the final prospectus), expiring August 6, 2024. - Approximately 80,000,000 pre-IPO shares are covered. - The side letter regarding pre-existing Rule 10b5-1 plan exceptions for Dr. Nathaniel Rourke and Margaret Tsujimoto has been countersigned by Whitfield Barrow. No open items.
**(d) FINRA No-Objections Letter**
Received on approximately January 30, 2024. In hand; no issues.
**(e) NYSE Listing Approval Letter**
Letter from the NYSE authorizing listing under ticker ARHT has been received. Listing is subject to official notice of issuance, which will be satisfied upon closing and delivery of shares.
**(f) DTC Eligibility Letter**
Letter from Continental Share Services confirming that ARHT common stock (CUSIP: 039217105) is eligible for deposit and book-entry transfer through DTC has been received and confirmed.
**(g) Rule 424(b)(4) Final Prospectus**
Filed with the SEC on February 9, 2024. Filing confirmed. The final prospectus reflects pricing at $20.00 per share, 20,000,000 shares, gross proceeds of $400,000,000, underwriting discount of 6.0% ($1.20/share), and an overallotment option of 3,000,000 additional shares.
**(h) Registration Statement Effectiveness**
The Registration Statement on Form S-1 (File No. 333-276841) was declared effective by the SEC on February 8, 2024. No stop order has been issued and no proceedings for that purpose have been initiated or threatened. Confirmed.
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**3. Items to Be Delivered Tomorrow Morning (February 13)**
**(a) Officers' Certificate**
Certificate of Dr. Nathaniel Rourke (CEO) and David Halderman (CFO) pursuant to Section 7(d) of the Underwriting Agreement. Final form has been reviewed and approved. Rachel Moynihan confirmed that both officers will execute first thing tomorrow morning. Expected by 8:30 AM.
**(b) Secretary's Certificate**
Rachel Moynihan will execute the Secretary's Certificate certifying and attaching:
- The Amended and Restated Certificate of Incorporation (to be filed with the Delaware Secretary of State on February 13, 2024, upon closing); - The Amended and Restated Bylaws (adopted February 8, 2024, effective upon closing); and - All relevant Board and stockholder resolutions.
Final form has been circulated and confirmed. Note: The A&R Certificate of Incorporation will be filed with the Delaware Secretary of State first thing tomorrow morning; filing confirmation is expected by 9:00 AM. The Secretary's Certificate will attach the file-stamped copy.
**(c) Calderwood & Harkness Legal Opinions**
All of the following are in final form, reviewed and approved by Theodore and Sylvia Hartwell. Each will be dated and executed tomorrow, February 13, 2024:
- Validity of Shares opinion (Theodore Langston) — confirming 20,000,000 shares are validly issued, fully paid, and non-assessable under the Delaware General Corporation Law. - Delaware Law opinion — corporate existence and good standing, corporate power and authority. - Negative assurance (10b-5) letter addressed to the underwriters. - Tax opinion (Sylvia Hartwell) — regarding U.S. federal income tax consequences to non-U.S. holders. - Opinion re: lock-up shares — no registration required. - Reliance letter authorizing Meridian Hale & Quivorn to rely on C&H opinions.
**(d) Cross-Receipt (Base Closing)**
Cross-receipt between Arbor Health and Whitfield Barrow & Co. (as Representative) confirming delivery of 20,000,000 shares against payment of the aggregate purchase price of $376,000,000 (net of $24,000,000 underwriting discount; 20,000,000 shares × $18.80 per share). Draft has been reviewed by Meridian Hale; agreed form. Will be executed at closing.
**(e) Bring-Down Comfort Letter (Kellerman)**
As noted above, expected by 8:00 AM from Kellerman.
**(f) Meridian Hale & Quivorn Deliverables**
Graham Neville confirmed that Meridian Hale's opinion (underwriters' counsel opinion) and negative assurance letter will be delivered tomorrow morning. We have reviewed draft forms of both; no outstanding issues.
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**4. Filing of A&R Certificate of Incorporation**
The Amended and Restated Certificate of Incorporation — authorizing 400,000,000 shares of common stock (par value $0.001) and 50,000,000 shares of preferred stock (par value $0.001, blank check) — must be filed with the Delaware Secretary of State on the closing date. The filing agent has been instructed. I will confirm filing tomorrow morning and obtain the file-stamped copy for the closing binder and Secretary's Certificate.
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**5. Payoff of Keypoint Credit Facility**
The payoff letter from Keypoint National Bank, N.A. has been received. It confirms an outstanding balance of approximately $65,000,000, per diem interest, and wire instructions. Wire transfer of payoff funds from IPO proceeds will be initiated on the closing date. Lien releases will follow upon Keypoint's receipt and confirmation of payoff.
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**6. Fund Flow / Wire Instructions**
Whitfield Barrow has provided wire instructions for delivery of the aggregate purchase price. AHT treasury (David Halderman's team) has confirmed Arbor Health's wire instructions for receipt of net proceeds. Both are cross-referenced on the closing checklist.
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**7. Closing Binder**
I am coordinating closing binder compilation. Toppan Donnelley has been engaged for binding and assembly. Target completion: two weeks post-closing.
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**8. Overallotment Option**
The underwriters' overallotment option for up to 3,000,000 additional shares remains open for 30 days from the date of the final prospectus (February 8, 2024). No action is required at this time. Separate closing deliverables will be prepared if and when the option is exercised.
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**9. Action Items**
- **Theodore:** Please confirm you are available to execute the C&H opinions tomorrow morning (targeting 9:00 AM). - **Sylvia Hartwell:** Tax opinion is confirmed ready; please countersign tomorrow morning. - **Eric:** Please confirm your final review of the cross-receipt and that Meridian Hale has no further comments on the opinion forms. - **Claire:** I will follow up with Rachel Moynihan at 7:30 AM to confirm execution of the Officers' Certificate and Secretary's Certificate, and to confirm Delaware filing of the A&R Certificate of Incorporation.
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We are in good shape for tomorrow's closing. I will be at the office by 7:00 AM and am available on my cell overnight for any last-minute items.
Best regards,
Claire Dempsey Associate, Capital Markets Calderwood & Harkness LLP 125 Broad Street New York, NY 10004 Tel: (212) 558-3742 Cell: (917) 604-8219 cdempsey@calderwoodharkness.com