CALDERWOOD & HARKNESS LLP 125 Broad Street New York, NY 10004
Telephone: (212) 558-4000 Facsimile: (212) 558-3588
February 13, 2024
To the several Underwriters named in Schedule I to the Underwriting Agreement referred to below:
Whitfield Barrow & Co., LLC 383 Madison Avenue New York, NY 10179 (as Representative of the several Underwriters)
Calloway Pierce Securities LLC 200 Park Avenue, 40th Floor New York, NY 10166
Velthorn Capital Partners Inc. 555 California Street, Suite 3000 San Francisco, CA 94104
Pemberton Wallis LLC 100 Federal Street, 28th Floor Boston, MA 02110
Ladies and Gentlemen:
Re: Initial Public Offering of Common Stock of Arbor Health Technologies Inc. — Opinion Regarding Corporate Existence and Good Standing
This opinion letter is furnished to you in connection with the Underwriting Agreement dated February 8, 2024 (the "Underwriting Agreement"), among Arbor Health Technologies Inc., a Delaware corporation (the "Company"), and Whitfield Barrow & Co., LLC, as Representative of the several underwriters named in Schedule I thereto (collectively, the "Underwriters"), relating to the initial public offering (the "Offering") and sale by the Company of shares of common stock, par value $0.001 per share, of the Company (the "Common Stock"). This opinion is delivered to you pursuant to Section 7(e) of the Underwriting Agreement in connection with the closing of the Offering on the date hereof.
I. ENGAGEMENT AND SCOPE
Calderwood & Harkness LLP has acted as counsel to the Company in connection with the preparation and filing of the Registration Statement on Form S-1 (File No. 333-276841) (together with all amendments and supplements thereto, the "Registration Statement"), which was filed with the Securities and Exchange Commission (the "SEC" or the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), and which was declared effective by the Commission on February 8, 2024. We have also acted as counsel to the Company in connection with the preparation of the final prospectus, dated February 9, 2024, filed with the Commission pursuant to Rule 424(b)(4) under the Securities Act (the "Prospectus"), which forms part of the Registration Statement. The Prospectus relates to the offering and sale by the Company of 20,000,000 shares of Common Stock (the "Firm Shares") at an initial public offering price of $20.00 per share, together with up to 3,000,000 additional shares of Common Stock subject to the Underwriters' option to purchase additional shares to cover overallotments (the "Option Shares" and, together with the Firm Shares, the "Shares"), as more fully described in the Registration Statement and the Prospectus.
We have also acted as counsel to the Company in connection with the negotiation, execution, and delivery of the Underwriting Agreement dated February 8, 2024.
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Underwriting Agreement or the Prospectus, as applicable. References herein to the "DGCL" mean the General Corporation Law of the State of Delaware, as amended and in effect on the date hereof.
II. DOCUMENTS AND RECORDS EXAMINED
In rendering the opinions expressed herein, we have examined originals, or copies identified to our satisfaction as being true and complete copies of originals, of the following documents, instruments, records, and certificates:
1. The Amended and Restated Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware on February 13, 2024 (the "Certificate of Incorporation"), which authorizes 400,000,000 shares of Common Stock, par value $0.001 per share, and 50,000,000 shares of preferred stock, par value $0.001 per share (the "Preferred Stock"), and which sets forth the rights, preferences, privileges, and restrictions applicable to each class of capital stock of the Company;
2. The Amended and Restated Bylaws of the Company, adopted by the Board of Directors of the Company (the "Board") on February 8, 2024, effective upon the closing of the Offering on the date hereof (the "Bylaws");
3. Resolutions adopted by the Board at meetings duly called and held on November 14, 2023, December 19, 2023, January 22, 2024, and February 8, 2024, and resolutions adopted by the Pricing Committee of the Board (the "Pricing Committee") on February 8, 2024 (collectively, the "Board Resolutions"), relating to, among other things: (a) the authorization of the Offering, (b) the preparation, filing, and amendment of the Registration Statement with the Commission, (c) the engagement of Whitfield Barrow & Co., LLC and the other Underwriters named in Schedule I to the Underwriting Agreement in connection with the Offering, (d) the adoption of the Certificate of Incorporation and the Bylaws, (e) the authorization of the issuance and sale of the Shares (including the Option Shares), and (f) the authorization and approval of the final pricing of the Shares at $20.00 per share, with an underwriting discount of $1.20 per share, as set forth in the Pricing Committee Resolutions dated February 8, 2024;
4. A written consent of the stockholders of the Company, executed by Brindoval Trelvon Partners Fund IV, L.P., Ridgeline Growth Equity Fund III, LLC, Dr. Nathaniel Rourke, Margaret Tsujimoto, and certain other stockholders holding, in the aggregate, a majority of the outstanding shares of the Company's capital stock entitled to vote thereon (the "Stockholder Written Consent"), approving, among other things, the adoption of the Certificate of Incorporation and related matters in connection with the Offering;
5. The Registration Statement on Form S-1 (File No. 333-276841), including all amendments thereto (Amendments No. 1 through No. 4, filed on December 6, 2023, January 10, 2024, January 29, 2024, and February 5, 2024, respectively), and the Prospectus dated February 9, 2024 filed pursuant to Rule 424(b)(4) under the Securities Act;
6. The Underwriting Agreement dated February 8, 2024, among the Company and the several Underwriters named therein;
7. A Certificate of Good Standing for the Company issued by the Secretary of State of the State of Delaware, dated February 9, 2024 (the "Delaware Good Standing Certificate");
8. A Certificate of Legal Existence and Good Standing for the Company issued by the Secretary of the Commonwealth of Massachusetts, dated February 8, 2024 (the "Massachusetts Good Standing Certificate");
9. Certificates of good standing, certificates of qualification, or certificates of authority (or the equivalent thereof) for the Company issued by the appropriate governmental authorities in each of the following jurisdictions in which the Company is qualified or registered to transact business as a foreign corporation: the State of New York, the State of California, the State of Texas, the State of Illinois, the State of Florida, the Commonwealth of Pennsylvania, the State of Ohio, the State of New Jersey, and the State of Georgia, in each case dated within five (5) business days of February 13, 2024 (collectively, and together with the Massachusetts Good Standing Certificate, the "Foreign Qualification Certificates");
10. A Secretary's Certificate of Rachel Moynihan, General Counsel and Corporate Secretary of the Company, dated February 13, 2024, certifying as to and attaching true and complete copies of: (a) the Certificate of Incorporation, (b) the Bylaws, (c) the Board Resolutions, and (d) the Stockholder Written Consent, and certifying as to certain factual matters relating to the Company (the "Secretary's Certificate");
11. An Officers' Certificate executed by Dr. Nathaniel Rourke, Chief Executive Officer and Co-Founder of the Company, and David Halderman, Chief Financial Officer of the Company, dated February 13, 2024, certifying as to certain factual matters relating to the Company and the Offering (the "Officers' Certificate"); and
12. Such other documents, records, certificates, instruments, and matters of law as we have deemed necessary or appropriate for purposes of the opinions expressed herein.
III. ASSUMPTIONS
In rendering the opinions expressed herein, we have, with your consent and without independent investigation or verification, assumed the following:
(a) All documents submitted to us as originals are authentic, complete, and accurate, and all documents submitted to us as copies (whether certified, photostatic, electronic, or otherwise) conform to the authentic originals of such documents.
(b) All signatures on all documents that we have examined are genuine, and all natural persons who have executed any such documents had, at the time of such execution, full legal capacity to do so.
(c) Each party to the documents we have reviewed (other than the Company) has the requisite corporate or other organizational power and authority to execute, deliver, and perform its obligations under each such document to which it is a party, and each such document has been duly authorized, executed, and delivered by each such party (other than the Company) and constitutes the valid, legally binding, and enforceable obligation of each such party (other than the Company), in accordance with its terms.
(d) The Delaware Good Standing Certificate accurately reflects the status of the Company under the DGCL as of the date of such certificate, and the Massachusetts Good Standing Certificate and each of the Foreign Qualification Certificates accurately reflect the status of the Company in the respective jurisdictions to which they relate as of the dates of such certificates.
(e) The Secretary's Certificate of Rachel Moynihan, General Counsel and Corporate Secretary of the Company, dated February 13, 2024, is accurate and complete in all respects, and the copies of the Certificate of Incorporation, Bylaws, Board Resolutions, and Stockholder Written Consent attached thereto are true, correct, and complete copies of the originals thereof, and such originals have not been amended, modified, rescinded, or revoked since the respective dates thereof and remain in full force and effect on the date hereof.
(f) The factual representations and warranties of the Company set forth in the Underwriting Agreement, the Officers' Certificate, and the Secretary's Certificate are true, correct, and complete in all material respects as of the date hereof and as of the respective dates on which such representations and warranties were made.
(g) The Company has its principal executive offices and headquarters at 275 Kendall Avenue, Suite 1400, Cambridge, Massachusetts 02142, and its registered agent for service of process in the State of Delaware is National Registered Agents of Delaware, Inc., 160 Greentree Drive, Suite 101, Dover, Delaware 19904.
(h) There are no agreements, instruments, or other documents to which the Company is a party or by which it is bound that are not included among the documents described in Section II above that would affect the opinions rendered herein.
(i) There has been no amendment or modification to any of the documents we have reviewed, and no action has been taken by any of the parties thereto or by any governmental authority, that would affect or render inaccurate any of the opinions expressed herein, in each case subsequent to the dates as of which such documents were provided to us or as of which the certificates referenced herein were issued.
IV. OPINIONS
Based upon and subject to the foregoing, and subject to the qualifications, limitations, exceptions, and assumptions set forth herein, we are of the opinion that:
Opinion 1 — Valid Existence and Good Standing in Delaware
The Company is a corporation validly existing and in good standing under the General Corporation Law of the State of Delaware. The Company was originally incorporated in the State of Delaware on September 18, 2014, under the name "Arbor Health Technologies Inc." and has been continuously in existence under the DGCL since that date. Based on the Delaware Good Standing Certificate issued by the Secretary of State of the State of Delaware dated February 9, 2024, the Company is in good standing in the State of Delaware. For purposes of this opinion, "good standing" in the State of Delaware means only that the Company has filed all required annual reports and has paid all franchise taxes due and payable to the State of Delaware, as reflected in the records of the Delaware Secretary of State as of the date of the Delaware Good Standing Certificate.
Opinion 2 — Corporate Power and Authority
The Company has the corporate power and authority under the General Corporation Law of the State of Delaware, and pursuant to its Certificate of Incorporation and Bylaws, to:
(a) own, lease, and operate its properties and assets as described in the Registration Statement and the Prospectus;
(b) conduct its business as described in the Registration Statement and the Prospectus, including, without limitation, the development, marketing, and provision of its cloud-based clinical decision support and population health management platform, its revenue cycle management outsourcing services, and its real-time analytics services to over 1,200 hospital systems and physician groups across 42 states, with approximately 3,400 employees as of December 31, 2023, all as more fully described in the Prospectus;
(c) execute, deliver, and perform its obligations under the Underwriting Agreement; and
(d) issue, sell, and deliver the Shares (including the Option Shares) as contemplated by the Underwriting Agreement and the Registration Statement.
Opinion 3 — Authorized Capital Stock
The authorized capital stock of the Company, as set forth in the Certificate of Incorporation, consists of:
(a) 400,000,000 shares of Common Stock, par value $0.001 per share; and
(b) 50,000,000 shares of Preferred Stock, par value $0.001 per share.
As of the date hereof, after giving effect to the closing of the Offering with respect to the Firm Shares (but without giving effect to the exercise of the Underwriters' option to purchase Option Shares), 100,000,000 shares of Common Stock are issued and outstanding, consisting of 80,000,000 shares of Common Stock that were issued and outstanding immediately prior to the closing of the Offering and 20,000,000 shares of Common Stock issued to the Underwriters in connection with the Offering. As of the date hereof, no shares of Preferred Stock are issued and outstanding. The foregoing is consistent in all material respects with the description of the Company's capitalization set forth in the Prospectus under the caption "Capitalization."
Opinion 4 — Due Qualification — Commonwealth of Massachusetts
The Company is duly qualified, registered, and licensed to transact business and is in good standing as a foreign corporation in the Commonwealth of Massachusetts. This opinion is based solely on the Massachusetts Good Standing Certificate issued by the Secretary of the Commonwealth of Massachusetts dated February 8, 2024.
Opinion 5 — Due Qualification — Other Jurisdictions
The Company is duly qualified, registered, or licensed to transact business and is in good standing as a foreign corporation in each other jurisdiction where the character of its properties owned, leased, or operated, or the nature of the business conducted by it, makes such qualification, registration, or licensing necessary, except where the failure to be so duly qualified, registered, or licensed would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, financial condition, or results of operations of the Company (a "Material Adverse Effect"). In rendering this opinion, we have reviewed the Foreign Qualification Certificates and have noted that the Company has nexus with, and files income or franchise tax returns in, the following jurisdictions in addition to the Commonwealth of Massachusetts: the State of New York, the State of California, the State of Texas, the State of Illinois, the State of Florida, the Commonwealth of Pennsylvania, the State of Ohio, the State of New Jersey, and the State of Georgia. Our qualification analysis has been conducted with respect to each of these jurisdictions, and we have confirmed that the Company is duly qualified and in good standing in each such jurisdiction based on the applicable Foreign Qualification Certificates.
Opinion 6 — Corporate Authorization of the Offering
All necessary corporate action on the part of the Company and its stockholders has been duly and validly taken to authorize:
(a) the execution and delivery of the Underwriting Agreement by the Company;
(b) the issuance, sale, and delivery of the Shares, including the Firm Shares and the Option Shares, as contemplated by the Underwriting Agreement and the Registration Statement;
(c) the preparation, filing, and declaration of effectiveness of the Registration Statement by the Commission;
(d) the filing of the Prospectus with the Commission pursuant to Rule 424(b)(4) under the Securities Act; and
(e) the performance by the Company of its obligations under the Underwriting Agreement.
In rendering this opinion, we have relied upon the Board Resolutions, including the resolutions adopted by the Pricing Committee on February 8, 2024, which authorized the final pricing of the Shares at an initial public offering price of $20.00 per share, with an underwriting discount of $1.20 per share payable to the Underwriters, and which further authorized the grant of the option to purchase up to 3,000,000 Option Shares at the same price per share less the underwriting discount. We have also relied upon the Stockholder Written Consent, which was executed by the requisite holders of a majority of the outstanding shares of the Company's capital stock entitled to vote thereon.
Opinion 7 — No Conflict with Certificate of Incorporation or Bylaws
The execution, delivery, and performance by the Company of the Underwriting Agreement, and the issuance and sale of the Shares (including the Option Shares) as contemplated by the Underwriting Agreement and the Registration Statement, do not and will not:
(a) violate or conflict with any provision of the Certificate of Incorporation or the Bylaws of the Company; or
(b) result in a breach of, or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, the Certificate of Incorporation or the Bylaws of the Company.
V. QUALIFICATIONS AND LIMITATIONS
The opinions expressed herein are subject to the following qualifications, limitations, and exceptions:
1. The opinions expressed in this letter are limited solely to the General Corporation Law of the State of Delaware, including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting the foregoing (collectively, the "Covered Law"). We express no opinion with respect to the laws of any other jurisdiction, including, without limitation, the federal laws of the United States, the laws of the State of New York, or the laws of the Commonwealth of Massachusetts, except that the opinions expressed in Opinion 4 and Opinion 5 above with respect to the qualification and good standing of the Company in the Commonwealth of Massachusetts and in other jurisdictions are based solely on the Massachusetts Good Standing Certificate and the Foreign Qualification Certificates, respectively, and are not based on our independent analysis of the laws of any such jurisdictions.
2. The opinions expressed herein are rendered as of the date hereof, and we assume no obligation to update, revise, or supplement this opinion letter to reflect any changes in law, facts, or circumstances that may occur after the date hereof, or to inform you of any fact, matter, or development that may come to our attention hereafter that may affect in any manner the opinions expressed herein, regardless of whether such changes, facts, circumstances, matters, or developments would affect the opinions rendered herein if known to us on the date hereof.
3. The opinions expressed herein regarding the good standing of the Company are based solely on: (a) the Delaware Good Standing Certificate issued by the Secretary of State of the State of Delaware dated February 9, 2024; (b) the Massachusetts Good Standing Certificate issued by the Secretary of the Commonwealth of Massachusetts dated February 8, 2024; and (c) the Foreign Qualification Certificates issued by the appropriate governmental authorities in the jurisdictions referenced herein, in each case dated within five (5) business days of the date hereof. For purposes of Opinion 1 above, "good standing" in the State of Delaware means only that, as of the date of the Delaware Good Standing Certificate, the Company has filed all required annual reports and has paid all required franchise taxes to the State of Delaware as reflected in the records of the Secretary of State of the State of Delaware. We have made no independent investigation of the good standing of the Company in any jurisdiction beyond our review of such certificates.
4. No opinion is expressed herein with respect to compliance with, or the effect of, any federal or state securities laws or regulations (including, without limitation, the Securities Act, the Securities Exchange Act of 1934, as amended, or any rules or regulations promulgated thereunder), federal or state tax laws or regulations, federal or state antitrust laws, the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any healthcare regulatory laws, rules, or regulations (including, without limitation, the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA"), the federal physician self-referral law (the "Stark Law"), the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b), or any state equivalents of any of the foregoing), or any other federal, state, local, or foreign regulatory framework, in each case except to the extent that the Covered Law is expressly addressed herein.
5. No opinion is expressed herein with respect to any matter not expressly set forth in this letter, and no opinion should be inferred or implied beyond the matters expressly stated herein. Without limiting the generality of the foregoing, we express no opinion as to: (a) the enforceability of any particular provision of the Underwriting Agreement; (b) the validity, issuance, or status of the Shares (which is addressed in a separate opinion of this firm delivered on the date hereof); (c) any tax consequences arising from the transactions contemplated by the Underwriting Agreement; or (d) the accuracy or completeness of the Registration Statement or the Prospectus under applicable securities laws.
6. The opinions expressed herein are subject to the effect of: (a) applicable bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance, fraudulent transfer, and other similar laws of general applicability relating to or affecting creditors' rights and remedies generally; and (b) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith, and fair dealing, and the possible unavailability of specific performance, injunctive relief, or other equitable remedies (regardless of whether enforcement is considered in a proceeding in equity or at law) (collectively, the "Equitable Principles Qualification").
VI. RELIANCE AND BENEFIT
This opinion letter is rendered solely for the benefit of the addressees hereof (collectively, the "Addressees") in their capacity as Underwriters in connection with the transactions described herein and the closing of the Offering on the date hereof. This opinion letter may not be relied upon by any other person or entity, or for any other purpose, without the prior written consent of Calderwood & Harkness LLP.
Notwithstanding the foregoing, we hereby authorize Meridian Hale & Quivorn LLP, as counsel to the Underwriters, to rely on this opinion letter to the extent applicable to the matters addressed herein, subject to all of the qualifications, limitations, assumptions, and exceptions set forth herein. The authorization granted in the preceding sentence is subject to and should be read in conjunction with the separate Calderwood & Harkness LLP Secretary's Certificate Opinion Reliance Letter delivered to Meridian Hale & Quivorn LLP on the date hereof.
This opinion letter may not be quoted, cited, excerpted, or referred to, in whole or in part, in any document, report, or communication, or furnished to any person or entity, without the prior written consent of Calderwood & Harkness LLP, except that this opinion letter may be included as an exhibit to, or filed in connection with, the Registration Statement, as contemplated by the Underwriting Agreement.
VII. COMPANION OPINIONS
For the avoidance of doubt, this opinion letter addresses only the matters expressly set forth herein. We are delivering separately on the date hereof the following companion opinions and letters in connection with the Offering, each of which should be read independently and is subject to its own qualifications, limitations, assumptions, and exceptions:
(i) Calderwood & Harkness LLP Legal Opinion — Validity of Shares (addressing the due authorization, valid issuance, and fully paid and non-assessable status of the Shares);
(ii) Calderwood & Harkness LLP Legal Opinion — Tax Matters (addressing certain U.S. federal income tax matters related to the Offering);
(iii) Calderwood & Harkness LLP Negative Assurance Letter (10b-5 Letter) (providing negative assurance as to the absence of material misstatements and omissions in the Registration Statement and the Prospectus); and
(iv) Calderwood & Harkness LLP Legal Opinion — No Registration Required for Lock-Up Shares (addressing certain matters relating to the resale of shares subject to lock-up agreements following the expiration of the lock-up period).
VIII. GOVERNING LAW
This opinion 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, as the jurisdiction in which the principal office of this firm is located and as provided under the engagement letter governing our representation of the Company.
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Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Theodore Langston, Partner Capital Markets Group
125 Broad Street New York, NY 10004 Telephone: (212) 558-4000 Facsimile: (212) 558-3588
TL/dkm cc: Arbor Health Technologies Inc. (Attn: Rachel Moynihan, General Counsel & Corporate Secretary) Meridian Hale & Quivorn LLP (Attn: Capital Markets Practice Group)