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CALDERWOOD & HARKNESS LLP Attorneys at Law

125 Broad Street New York, New York 10004 Telephone: (212) 558-4000 Facsimile: (212) 558-3588 www.calderwoodharkness.com

February 13, 2024

Whitfield Barrow & Co., LLC as Representative of the several Underwriters 383 Madison Avenue New York, New York 10179

Calloway Pierce Securities LLC 200 Park Avenue, 40th Floor New York, New York 10166

Velthorn Capital Partners Inc. 555 California Street, Suite 3000 San Francisco, California 94104

Pemberton Wallis LLC 100 Federal Street, 28th Floor Boston, Massachusetts 02110

(collectively, the "Underwriters")

Ladies and Gentlemen:

Re: Initial Public Offering of Arbor Health Technologies Inc. — Opinion Regarding Lock-Up Shares Under the Securities Act of 1933

Registration Statement on Form S-1 (File No. 333-276841) Underwriting Agreement dated February 8, 2024

I. Introduction and Engagement

Calderwood & Harkness LLP ("we," "us," or the "Firm") has acted as counsel to Arbor Health Technologies Inc., a corporation organized and existing under the laws of the State of Delaware (the "Company" or "AHT"), in connection with the Company's initial public offering (the "IPO") of 20,000,000 shares of common stock, par value $0.001 per share (the "Shares"), at a public offering price of $20.00 per share (plus up to 3,000,000 additional shares of common stock subject to the Underwriters' overallotment option), pursuant to the Registration Statement on Form S-1 (File No. 333-276841) initially filed with the Securities and Exchange Commission (the "SEC" or the "Commission") and declared effective by the Commission on February 8, 2024 (as amended and supplemented through the date hereof, the "Registration Statement").

This opinion is delivered in connection with the Underwriting Agreement dated February 8, 2024 (the "Underwriting Agreement") entered into among the Company, on the one hand, and Whitfield Barrow & Co., LLC, as representative (the "Representative") of the several underwriters named therein (collectively, the "Underwriters"), on the other hand. The IPO closed on February 13, 2024, and the Shares have been listed on the New York Stock Exchange under the ticker symbol "ARHT."

This opinion is delivered specifically in connection with the lock-up agreements (each, a "Lock-Up Agreement" and collectively, the "Lock-Up Agreements") executed by certain directors, officers, and stockholders of the Company in favor of Whitfield Barrow & Co., LLC, as Representative of the Underwriters. The Lock-Up Agreements were executed and delivered in connection with the IPO and impose certain restrictions on the offer, sale, or other disposition of shares of common stock of the Company held by the parties thereto for a period of 180 days following the date of the final prospectus filed with the Commission. We understand that the delivery of this opinion is a condition to the obligations of the Underwriters under Section 7(k) of the Underwriting Agreement.

Reference is also made to the final prospectus dated February 8, 2024, filed with the Commission pursuant to Rule 424(b)(4) under the Securities Act of 1933, as amended (the "Securities Act"), on February 9, 2024 (the "Prospectus"), which forms a part of the Registration Statement.

II. Documents Examined

In connection with the preparation and delivery of this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents:

1. The Registration Statement on Form S-1 (File No. 333-276841), including the initial confidential submission to the Commission dated November 10, 2023, the publicly filed Registration Statement on Form S-1 dated January 22, 2024, Amendment No. 1 thereto filed February 5, 2024, all exhibits and schedules thereto, and the Prospectus filed pursuant to Rule 424(b)(4) under the Securities Act on February 9, 2024, together with all documents incorporated by reference therein;

2. The Underwriting Agreement dated February 8, 2024, by and among the Company and Whitfield Barrow & Co., LLC, as Representative of the several underwriters named therein;

3. The form of Lock-Up Agreement, as set forth in Exhibit A to the Underwriting Agreement and as described in the Registration Statement;

4. Executed counterpart copies of Lock-Up Agreements from each of the approximately 45 Lock-Up Parties (as defined below), covering in the aggregate approximately 80,000,000 shares of pre-IPO outstanding common stock of the Company, which we have confirmed are in substantially the form of the Lock-Up Agreement attached as Exhibit A to the Underwriting Agreement;

5. The Amended and Restated Certificate of Incorporation of Arbor Health Technologies Inc. filed with the Secretary of State of the State of Delaware on February 13, 2024, authorizing 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 "Restated Charter");

6. The Amended and Restated Bylaws of Arbor Health Technologies Inc. adopted by the Board of Directors on February 8, 2024 (the "Restated Bylaws");

7. The Amended and Restated Registration Rights Agreement, effective upon the closing of the IPO, entered into among the Company, Brindoval Trelvon Partners Fund IV, L.P. ("Brindoval"), and Ridgeline Growth Equity Fund III, LLC ("Ridgeline") (the "Registration Rights Agreement");

8. Resolutions of the Board of Directors of the Company, adopted on February 7, 2024, authorizing the IPO and all related transactions, including the entry into the Underwriting Agreement, the Lock-Up Agreements, and the Registration Rights Agreement (the "Board Resolutions");

9. The Stockholder Written Consent of the holders of a majority of the outstanding shares of common stock and preferred stock of the Company, dated February 7, 2024, approving the IPO and related matters, including the adoption of the Restated Charter and the Restated Bylaws;

10. Certificates of officers of the Company, including the certificate of Rachel Moynihan, General Counsel and Corporate Secretary of the Company, dated the date hereof, delivered to us in connection with this opinion (the "Officer's Certificate"); and

11. Such other documents, corporate records, certificates, agreements, instruments, and records as we have deemed necessary or appropriate for purposes of rendering this opinion, including records of proceedings of the Board of Directors and stockholders of the Company and a good standing certificate issued by the Secretary of State of the State of Delaware with respect to the Company dated February 12, 2024.

We have also made such investigations of law as we have deemed necessary or appropriate as a basis for the opinions expressed herein.

III. Defined Terms

In addition to terms defined elsewhere in this opinion, the following capitalized terms shall have the meanings set forth below:

"Lock-Up Agreements" means the lock-up agreements, in substantially the form attached as Exhibit A to the Underwriting Agreement, executed by each Lock-Up Party in favor of Whitfield Barrow & Co., LLC, as Representative of the Underwriters, in connection with the IPO.

"Lock-Up Parties" means all directors, executive officers, and holders of 1% or more of the outstanding shares of common stock of the Company on a pre-IPO basis who have executed Lock-Up Agreements, comprising approximately 45 individuals and entities. The Lock-Up Parties include, without limitation, the following:

(a) Dr. Nathaniel Rourke, Co-Founder, Chairman of the Board of Directors and Chief Executive Officer of the Company, holding 12,800,000 shares of common stock;

(b) Margaret Tsujimoto, Co-Founder and Chief Technology Officer of the Company, holding 9,600,000 shares of common stock;

(d) Rachel Moynihan, General Counsel and Corporate Secretary of the Company, holding 1,200,000 shares of common stock;

(e) Dr. Priya Subramanian, Chief Medical Officer of the Company, holding 1,600,000 shares of common stock;

(f) Brindoval Trelvon Partners Fund IV, L.P., a Delaware limited partnership, holding 28,000,000 shares of common stock;

(g) Ridgeline Growth Equity Fund III, LLC, a Delaware limited liability company, holding 16,000,000 shares of common stock;

(h) Leonard Corbett, Diana Coltrane, Howard Feng, Carolyn Whittemore, and Dr. Samuel Obadina, each serving as a member of the Board of Directors of the Company, holding shares of common stock individually as set forth in the Lock-Up Agreements; and

(i) Other pre-IPO holders of shares of common stock of the Company, including certain employees, advisors, and former employees, holding in the aggregate approximately 8,400,000 shares of common stock.

"Lock-Up Shares" means the approximately 80,000,000 shares of common stock of the Company subject to the Lock-Up Agreements, representing 100% of the outstanding shares of common stock of the Company immediately prior to the closing of the IPO. For the avoidance of doubt, the Lock-Up Shares do not include the 20,000,000 Shares (or up to 23,000,000 Shares if the overallotment option is exercised in full) sold by the Company in the IPO.

"Lock-Up Period" means the period of 180 days commencing on the date of the Prospectus (February 8, 2024) through and including August 6, 2024, as specified in each Lock-Up Agreement.

"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder by the Commission.

"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder by the Commission.

IV. Assumptions

We have assumed the following for purposes of this opinion, and we have not undertaken any independent investigation to verify the accuracy or completeness of any of these assumptions:

1. The genuineness of all signatures on all documents examined by us; the authenticity and completeness of all documents submitted to us as originals; and the conformity with originals of all documents submitted to us as copies. We have also assumed that all documents examined by us that were executed by parties other than the Company have been duly authorized, executed, and delivered by such parties and constitute the valid, binding, and enforceable obligations of such parties in accordance with their respective terms.

2. Each natural person who has executed a Lock-Up Agreement has the legal capacity and authority to do so, and each entity that has executed a Lock-Up Agreement has been duly organized, is validly existing and in good standing under the laws of its jurisdiction of organization, and has all requisite power and authority to execute, deliver, and perform its obligations under its Lock-Up Agreement.

3. Each Lock-Up Agreement has been duly authorized, executed, and delivered by each Lock-Up Party and constitutes a valid and binding obligation of each Lock-Up Party, enforceable against each Lock-Up Party in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws affecting creditors' rights generally, and to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) (collectively, the "Enforceability Exceptions").

4. The Lock-Up Shares were acquired by the Lock-Up Parties in transactions that were either (a) exempt from the registration requirements of the Securities Act pursuant to one or more exemptions available thereunder (including, without limitation, Section 4(a)(2), Regulation D, and Regulation S of the Securities Act), or (b) registered under the Securities Act pursuant to one or more effective registration statements filed with the Commission. We have not independently investigated the circumstances of the original issuance of, or the subsequent transfers of, the Lock-Up Shares to the Lock-Up Parties, but we have relied upon the representations of the Company and the Lock-Up Parties in this regard.

5. No Lock-Up Party has engaged, or will engage during the Lock-Up Period, in any transaction with respect to the Lock-Up Shares that would be inconsistent with the terms of its respective Lock-Up Agreement, and each Lock-Up Party will comply in all material respects with the restrictions and obligations set forth in its Lock-Up Agreement.

6. The factual representations and statements made by the Company and its officers in certificates delivered to us in connection with this opinion, including the Officer's Certificate, are true, correct, and complete in all material respects as of the date hereof. We have relied upon such representations and statements without independent verification, and we express no opinion as to the accuracy of any such factual matter.

V. Summary of Lock-Up Arrangement

The Lock-Up Agreements form an integral component of the contractual framework governing the IPO. They are customary in nature and were negotiated as part of the overall underwriting arrangement between the Company and the Underwriters. The following is a summary of the material terms and provisions of the Lock-Up Agreements, as relevant to the opinions expressed herein.

Restrictions on Transfer. Under the terms of each Lock-Up Agreement, each Lock-Up Party has agreed, for the Lock-Up Period (i.e., a period of 180 days commencing on February 8, 2024, the date of the Prospectus, through and including August 6, 2024), not to, directly or indirectly:

(i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right, or warrant to purchase, lend, or otherwise transfer or dispose of any Lock-Up Shares or any securities convertible into or exercisable or exchangeable for Lock-Up Shares; or

(ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Lock-Up Shares, whether any such transaction described in clause (i) or clause (ii) above is to be settled by delivery of Lock-Up Shares or other securities, in cash, or otherwise.

The restrictions set forth above are broad and are intended to prevent the Lock-Up Parties from engaging in any transaction that would result in, or could be perceived as resulting in, the effective disposition of economic interests in the Lock-Up Shares during the Lock-Up Period.

Permitted Exceptions. The Lock-Up Agreements provide for the following limited exceptions to the foregoing restrictions:

(i) Estate Planning Transfers. A Lock-Up Party may transfer Lock-Up Shares for bona fide estate planning purposes, including transfers to a trust for the direct or indirect benefit of the Lock-Up Party or the immediate family of the Lock-Up Party, or to a charitable organization qualifying under Section 501(c)(3) of the Internal Revenue Code; provided, however, that as a condition to any such transfer, the transferee or donee shall execute and deliver a Lock-Up Agreement in substantially the same form as the Lock-Up Agreement of the transferor, binding the transferee for the remainder of the Lock-Up Period, and provided further that no filing under Section 16(a) of the Exchange Act or other public announcement shall be required or shall be made voluntarily in connection with such transfer during the Lock-Up Period (other than a filing on Form 5 made after the expiration of the Lock-Up Period).

(ii) Pre-Existing Rule 10b5-1 Plans. A Lock-Up Party may sell Lock-Up Shares pursuant to a pre-existing trading plan established in accordance with Rule 10b5-1 under the Exchange Act, provided that (a) such trading plan was established prior to January 1, 2024, (b) such trading plan was disclosed in the Registration Statement, and (c) no public announcement or filing under the Exchange Act with respect to such sale shall indicate that such sale was made during the Lock-Up Period other than as required by law. The Registration Statement discloses pre-existing Rule 10b5-1 trading plans established by Dr. Nathaniel Rourke (providing for the sale of up to 200,000 shares of common stock during the Lock-Up Period) and Margaret Tsujimoto (providing for the sale of up to 150,000 shares of common stock during the Lock-Up Period).

(iii) Open Market Post-IPO Acquisitions. The restrictions of the Lock-Up Agreements do not apply to shares of common stock of the Company acquired by a Lock-Up Party in open market transactions after the closing of the IPO. For the avoidance of doubt, any shares so acquired are not subject to the restrictions of the Lock-Up Agreements, and this exception does not permit the offer, sale, or transfer of Lock-Up Shares during the Lock-Up Period.

(iv) Tax Withholding Transfers. A Lock-Up Party may transfer Lock-Up Shares representing up to 10% of such Lock-Up Party's total Lock-Up Shares to the Company in satisfaction of tax withholding obligations arising in connection with the vesting of restricted stock units or similar equity awards, provided that any shares so transferred are retired or cancelled by the Company.

Nature of the Lock-Up Arrangement. It is important to note the fundamental character of the Lock-Up Agreements in relation to the opinions expressed below. The Lock-Up Agreements do not involve any transfer of ownership, whether legal or beneficial, of the Lock-Up Shares. The Lock-Up Parties retain at all times during the Lock-Up Period full legal and beneficial ownership of their respective Lock-Up Shares, including all voting rights, dividend rights, distribution rights, and all other incidents of ownership. The Lock-Up Agreements do not involve any sale, exchange, or other disposition of the Lock-Up Shares, nor does any consideration pass between the Lock-Up Parties and the Underwriters in connection with the execution and delivery of the Lock-Up Agreements. The Lock-Up Agreements are entered into by the Lock-Up Parties as an accommodation to the Underwriters, and to facilitate an orderly market for the Company's common stock following the IPO, and constitute contractual restrictions on the ability of the Lock-Up Parties to transfer or dispose of the Lock-Up Shares during the Lock-Up Period. The Lock-Up Agreements do not create any rights of the Underwriters in or to the Lock-Up Shares, including any lien, pledge, security interest, or other encumbrance on the Lock-Up Shares.

VI. Analysis

A. No "Sale" or "Offer to Sell" Under Section 2(a)(3) of the Securities Act

Section 2(a)(3) of the Securities Act defines the terms "sale" and "sell" broadly to include "every contract of sale or disposition of a security or interest therein for value." Section 2(a)(3) further defines the term "offer to sell," "offer for sale," or "offer" to include "every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest therein, for value." These definitions are intended to encompass a wide range of transactions involving the disposition of securities, and they are construed broadly by the Commission and the courts in furtherance of the remedial purposes of the Securities Act.

However, despite the breadth of these definitions, a necessary element of any "sale" or "offer to sell" under Section 2(a)(3) is the disposition of, or an attempt or offer to dispose of, a security or interest therein. The Lock-Up Agreements do not involve any such disposition. To the contrary, the Lock-Up Agreements impose contractual restrictions that prevent the Lock-Up Parties from disposing of their Lock-Up Shares during the Lock-Up Period. The Lock-Up Parties retain full legal and beneficial ownership of their Lock-Up Shares at all times during the Lock-Up Period. No Lock-Up Party transfers, conveys, assigns, or otherwise disposes of any share of common stock, or any interest therein, by virtue of executing, delivering, or performing its obligations under its Lock-Up Agreement.

Moreover, the definition of "sale" under Section 2(a)(3) requires that any disposition be "for value." No consideration is paid by the Underwriters to the Lock-Up Parties in connection with the execution of the Lock-Up Agreements. Similarly, no consideration is paid by the Lock-Up Parties to the Underwriters. The Lock-Up Agreements are entered into by the Lock-Up Parties as an accommodation to the Underwriters and as a customary condition to the closing of the IPO, intended to facilitate an orderly public market for the Company's common stock following the IPO and to demonstrate the continued commitment of the Company's founders, management, and principal stockholders to the long-term value of the Company. The mutual obligations arising under the Underwriting Agreement and the relationship between the Company and the Underwriters in connection with the IPO do not constitute "value" within the meaning of Section 2(a)(3) with respect to the Lock-Up Agreements, as the Lock-Up Agreements do not involve any transfer or disposition of securities or interests therein.

The Lock-Up Agreements restrict the Lock-Up Parties from selling, offering to sell, or otherwise disposing of the Lock-Up Shares during the Lock-Up Period. By their very nature, the Lock-Up Agreements are the antithesis of a "sale" or "offer to sell" — they constitute a binding contractual commitment not to sell, offer, or dispose of shares. We are not aware of any interpretive guidance, no-action letter, or judicial authority that would characterize a contractual restriction on the future sale or transfer of securities as itself constituting a "sale" or "offer to sell" under the Securities Act.

Accordingly, it is our view that the execution, delivery, and performance of the Lock-Up Agreements, and compliance by the Lock-Up Parties with the restrictions set forth therein during the Lock-Up Period, do not constitute a "sale," "sell," "offer to sell," "offer for sale," "offer," or "offer to buy" within the meaning of Section 2(a)(3) of the Securities Act.

B. No "Security" Created by the Lock-Up Arrangement

Section 2(a)(1) of the Securities Act defines the term "security" to include, inter alia, any note, stock, treasury stock, security future, security-based swap, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities, or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a "security."

The Lock-Up Agreements are bilateral contractual arrangements between each Lock-Up Party, on the one hand, and Whitfield Barrow & Co., LLC, as Representative of the Underwriters, on the other hand. They are negative covenants — agreements by the Lock-Up Parties not to take certain specified actions with respect to their Lock-Up Shares during the Lock-Up Period. They do not create, evidence, or represent any new "security" within the meaning of Section 2(a)(1) of the Securities Act. The Lock-Up Agreements are not investment contracts, as they do not involve an investment of money in a common enterprise with the expectation of profits to be derived from the efforts of others, as articulated in SEC v. W.J. Howey Co., 328 U.S. 293 (1946), and its progeny. They are not notes, bonds, debentures, or evidence of indebtedness, as they do not evidence any obligation of one party to pay money or deliver property to another. They are not options, puts, calls, or other derivative instruments, as they do not grant any party the right to purchase, sell, or otherwise acquire or dispose of any security.

The Lock-Up Agreements do not transfer any economic interest in the Lock-Up Shares to any third party. Throughout the Lock-Up Period, the Lock-Up Parties retain all rights of ownership with respect to their Lock-Up Shares, including the right to vote, the right to receive dividends and distributions, and all other incidents of beneficial and legal ownership. The Underwriters acquire no economic interest in the Lock-Up Shares by virtue of the Lock-Up Agreements. The sole purpose and effect of the Lock-Up Agreements is to restrict the Lock-Up Parties' ability to transfer or dispose of their Lock-Up Shares for a specified period of time.

Accordingly, it is our view that the Lock-Up Agreements do not constitute, create, or evidence a "security" within the meaning of Section 2(a)(1) of the Securities Act, and no registration obligation arises by reason of the execution, delivery, or performance of the Lock-Up Agreements on the theory that a new security has been created.

C. No Registration Requirement Under Section 5 of the Securities Act

Section 5 of the Securities Act establishes the fundamental registration requirements for the offer and sale of securities in interstate commerce. Specifically, Section 5(a) provides, in relevant part, that it shall be unlawful for any person, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell a security through the use or medium of any prospectus or otherwise, unless a registration statement is in effect as to such security. Section 5(c) provides that it shall be unlawful for any person, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to offer to sell or offer to buy through the use or medium of any prospectus or otherwise any security, unless a registration statement has been filed as to such security.

The registration requirements of Section 5 apply only to the "sale" or "offer to sell" of a "security." As analyzed in Sections VI.A and VI.B above, the Lock-Up Agreements do not constitute a "sale" or "offer to sell" of any security within the meaning of the Securities Act, nor do they create or evidence any "security" that would be subject to the registration requirements of the Securities Act. Accordingly, the registration requirements of Section 5 of the Securities Act are not applicable to the Lock-Up Agreements or to the Lock-Up Shares in connection with the Lock-Up Agreements.

We note, for the avoidance of doubt, that the Lock-Up Shares may, at the expiration of the Lock-Up Period (i.e., on and after August 7, 2024), be sold, offered, or otherwise disposed of by the Lock-Up Parties, subject to compliance with applicable securities laws at the time of any such sale, offer, or disposition. Such compliance may include, as applicable:

(a) Sales in compliance with Rule 144 under the Securities Act, subject to the satisfaction of the applicable conditions thereof (including, where applicable, volume limitations, manner of sale requirements, current public information requirements, and holding period requirements);

(b) Sales pursuant to an effective registration statement filed with the Commission, including (as applicable) any registration statement filed pursuant to the demand registration rights or piggyback registration rights granted under the Amended and Restated Registration Rights Agreement; or

In this regard, we note that the Amended and Restated Registration Rights Agreement grants Brindoval Trelvon Partners Fund IV, L.P. and Ridgeline Growth Equity Fund III, LLC certain registration rights with respect to their shares of common stock of the Company, including (i) demand registration rights (each of Brindoval and Ridgeline is entitled to two long-form demand registrations), (ii) piggyback registration rights, and (iii) the right to request that the Company file a shelf registration statement on Form S-3 at any time following the 12-month anniversary of the closing of the IPO (subject to the Company's eligibility to use Form S-3). The Registration Rights Agreement includes a 180-day standstill period that is coterminous with the Lock-Up Period, during which neither Brindoval nor Ridgeline may exercise their demand registration rights.

However, the availability of any specific exemption from registration, and compliance with the conditions thereof, at the time of any future sale of Lock-Up Shares is beyond the scope of this opinion.

D. Permitted Exceptions Do Not Alter the Analysis

As described in Section V above, the Lock-Up Agreements provide for certain limited exceptions to the transfer restrictions imposed on the Lock-Up Parties during the Lock-Up Period. We have considered each of these permitted exceptions and have concluded that none of them alters the analysis set forth above or gives rise to any registration obligation with respect to the Lock-Up Shares under the Securities Act. The basis for this conclusion as to each permitted exception is set forth below.

(i) Estate Planning Transfers. Estate planning transfers are permitted only if the transferee or donee executes and delivers a substitute Lock-Up Agreement in substantially the same form as the transferor's Lock-Up Agreement, binding the transferee for the remainder of the Lock-Up Period. Accordingly, the Lock-Up Shares that are the subject of any such transfer remain subject to lock-up restrictions at all times during the Lock-Up Period, and the analysis set forth in this opinion applies equally to the substitute Lock-Up Agreement. Moreover, such transfers are typically effected pursuant to exemptions from registration available under the Securities Act (e.g., gifts to family members or trusts, which do not involve a "sale" for "value"), and we express no opinion herein as to the availability of any such exemption for the underlying transfer itself.

(ii) Pre-Existing Rule 10b5-1 Plans. Sales of Lock-Up Shares pursuant to pre-existing Rule 10b5-1 trading plans are permitted under the Lock-Up Agreements, but any such sales are conducted independently of the Lock-Up Agreement framework. Such sales are effected in the public market in compliance with all applicable securities laws, including applicable provisions of the Securities Act and the Exchange Act, and are disclosed in the Registration Statement. The existence of these pre-existing trading plans and the limited volume of shares subject thereto (up to 200,000 shares for Dr. Rourke and up to 150,000 shares for Ms. Tsujimoto) were disclosed in the Prospectus. Any registration obligation or exemption associated with sales under such plans arises independently of the Lock-Up Agreements and is outside the scope of this opinion.

(iii) Open Market Post-IPO Acquisitions. The Lock-Up Agreements expressly exclude from their scope any shares of common stock acquired by a Lock-Up Party in open market transactions after the closing of the IPO. Such shares are not Lock-Up Shares, and the restrictions of the Lock-Up Agreements do not apply to them. This exception is inherent in the definition of Lock-Up Shares and does not permit the offer, sale, or disposition of any Lock-Up Share during the Lock-Up Period. Accordingly, this exception does not implicate any registration requirement.

(iv) Tax Withholding Transfers. The Lock-Up Agreements permit a Lock-Up Party to transfer up to 10% of its Lock-Up Shares to the Company in satisfaction of tax withholding obligations arising in connection with the vesting of restricted stock units or similar equity awards. In such transactions, the transferee is the Company itself, and the shares so transferred are retired or cancelled by the Company and do not re-enter the public market. Such transfers to the issuer for the purpose of satisfying tax withholding obligations are not sales into the public market and do not implicate the registration requirements of the Securities Act in the context of this analysis.

In sum, none of the permitted exceptions under the Lock-Up Agreements creates a registration obligation with respect to the Lock-Up Shares as such, and none of the permitted exceptions alters the conclusions set forth in the opinions below.

VII. Opinions

Based upon the foregoing, and subject to the assumptions, qualifications, limitations, and exceptions set forth herein, it is our opinion that:

1. The Lock-Up Agreements do not constitute a "sale," "sell," "offer to sell," "offer for sale," or "offer to buy" of the Lock-Up Shares within the meaning of Section 2(a)(3) of the Securities Act of 1933, as amended.

2. The Lock-Up Agreements do not create, constitute, or evidence a "security" within the meaning of Section 2(a)(1) of the Securities Act of 1933, as amended, and no registration is required under the Securities Act by reason of the creation, execution, delivery, or performance of the Lock-Up Agreements.

3. The approximately 80,000,000 shares of common stock of Arbor Health Technologies Inc. subject to the Lock-Up Agreements (the Lock-Up Shares) are not required to be registered under Section 5 of the Securities Act of 1933, as amended, in connection with the lock-up arrangement described herein, and no registration statement is required to be filed with the Securities and Exchange Commission with respect to the lock-up arrangement as such.

4. The execution, delivery, and performance of the Lock-Up Agreements by the Lock-Up Parties, and compliance by the Lock-Up Parties with the restrictions set forth therein during the Lock-Up Period, do not require the filing of a registration statement under the Securities Act of 1933, as amended, or the delivery of a prospectus to any person under Section 5(b) of the Securities Act of 1933, as amended.

VIII. Qualifications and Limitations

The opinions expressed herein are subject to the following qualifications and limitations:

1. Scope of Applicable Law. This opinion is limited to the federal securities laws of the United States (specifically, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder by the Securities and Exchange Commission), and, to the extent relevant, the laws of the State of New York and the General Corporation Law of the State of Delaware. We express no opinion as to the laws of any other jurisdiction, including any foreign jurisdiction or any state other than New York and Delaware. Matters of Delaware law are addressed herein only insofar as they relate to the corporate power and authority of the Company and the valid issuance of the Lock-Up Shares.

2. No Obligation to Update. This opinion is rendered as of the date hereof, and we undertake no obligation, and disclaim any responsibility, to update, revise, or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention, any changes in law (including statutory changes, regulatory changes, or changes in judicial or administrative interpretations) that may hereafter occur, or any developments relating to the Company, the Lock-Up Parties, or the Lock-Up Shares that may arise after the date hereof.

3. Post-Lock-Up Sales. This opinion does not address the availability of any exemption from registration for sales, offers, or other dispositions of Lock-Up Shares following the expiration of the Lock-Up Period. Any such sales, offers, or dispositions will be subject to compliance with all applicable securities laws, including the Securities Act, the Exchange Act, and the rules and regulations promulgated thereunder, at the time of such sale, offer, or disposition. The Lock-Up Parties should consult with their own counsel regarding the availability of exemptions from registration at the time of any proposed sale.

4. No Blue Sky or State Securities Law Opinion. This opinion does not address any state "blue sky" securities laws or the securities laws of any jurisdiction other than the United States federal securities laws. The Lock-Up Parties are responsible for compliance with applicable state securities laws in connection with any future sale or disposition of the Lock-Up Shares.

5. Matters Expressly Addressed. This opinion is limited to the matters expressly stated herein, and no opinion is to be inferred or implied beyond the matters expressly so stated. Without limiting the generality of the foregoing, we express no opinion as to (a) any tax consequences of the Lock-Up Agreements or the lock-up arrangement, (b) any antitrust, regulatory, or other legal matters, (c) the enforceability of the Lock-Up Agreements (other than as assumed in Section IV above), (d) the validity of the original issuance of the Lock-Up Shares, or (e) compliance with any applicable listing rules or requirements of the New York Stock Exchange.

6. Reliance on Certificates and Representations. We have relied, without independent investigation or verification, on certificates of officers of the Company and on representations made to us by the Lock-Up Parties as to certain factual matters. We have assumed the accuracy and completeness of all such certificates and representations. To the extent that any factual matter assumed or relied upon herein is inaccurate or incomplete, the opinions expressed herein may be affected.

7. Enforceability Exceptions. Although we express no opinion as to the enforceability of the Lock-Up Agreements (having assumed enforceability for purposes of this opinion), we note for completeness that the enforceability of the Lock-Up Agreements may be subject to (i) applicable bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, receivership, moratorium, and similar laws affecting creditors' rights and remedies generally, (ii) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is considered in a proceeding in equity or at law), and (iii) the possible unavailability of specific performance, injunctive relief, or other equitable remedies, regardless of the adequacy of monetary damages.

IX. Reliance and Use

This opinion is furnished solely to the Underwriters named above in connection with the IPO of Arbor Health Technologies Inc. and is delivered pursuant to Section 7(k) of the Underwriting Agreement dated February 8, 2024. This opinion is given as of the date hereof, and we assume no obligation to advise the Underwriters or any other person of any change in applicable law or any other matter that may come to our attention after the date hereof that could affect the opinions expressed herein.

This opinion may not be relied upon by any other person or entity, or for any other purpose, without our prior written consent in each instance. Notwithstanding the foregoing, Meridian Hale & Quivorn LLP, as counsel to the Underwriters, may rely on this opinion to the extent set forth in the separate opinion reliance letter between us and Meridian Hale & Quivorn LLP dated the date hereof.

This opinion may not be quoted in whole or in part, summarized, paraphrased, or excerpted in any document, or filed with or furnished to any governmental authority or other person, without our prior written consent in each instance, except (a) as may be required in connection with regulatory filings relating to the IPO, (b) as may be required by applicable law, regulation, or legal process, or (c) in connection with any legal proceeding in which the Underwriters assert reliance on this opinion.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Theodore Langston, Partner

125 Broad Street New York, New York 10004 Telephone: (212) 558-4000

cc: Arbor Health Technologies Inc. — Attention: Rachel Moynihan, General Counsel Meridian Hale & Quivorn LLP — Attention: Underwriters' Counsel

CALDERWOOD & HARKNESS LLP Attorneys at Law
125 Broad Street New York, New York 10004 Telephone: (212) 558-4000 Facsimile: (212) 558-3588 www.calderwoodharkness.com
February 13, 2024
Whitfield Barrow & Co., LLC as Representative of the several Underwriters 383 Madison Avenue New York, New York 10179
Calloway Pierce Securities LLC 200 Park Avenue, 40th Floor New York, New York 10166
Velthorn Capital Partners Inc. 555 California Street, Suite 3000 San Francisco, California 94104
Pemberton Wallis LLC 100 Federal Street, 28th Floor Boston, Massachusetts 02110
(collectively, the "Underwriters")
Ladies and Gentlemen:
Re: Initial Public Offering of Arbor Health Technologies Inc. — Opinion Regarding Lock-Up Shares Under the Securities Act of 1933
Registration Statement on Form S-1 (File No. 333-276841) Underwriting Agreement dated February 8, 2024
I. Introduction and Engagement
Calderwood & Harkness LLP ("we," "us," or the "Firm") has acted as counsel to Arbor Health Technologies Inc., a corporation organized and existing under the laws of the State of Delaware (the "Company" or "AHT"), in connection with the Company's initial public offering (the "IPO") of 20,000,000 shares of common stock, par value $0.001 per share (the "Shares"), at a public offering price of $20.00 per share (plus up to 3,000,000 additional shares of common stock subject to the Underwriters' overallotment option), pursuant to the Registration Statement on Form S-1 (File No. 333-276841) initially filed with the Securities and Exchange Commission (the "SEC" or the "Commission") and declared effective by the Commission on February 8, 2024 (as amended and supplemented through the date hereof, the "Registration Statement").
This opinion is delivered in connection with the Underwriting Agreement dated February 8, 2024 (the "Underwriting Agreement") entered into among the Company, on the one hand, and Whitfield Barrow & Co., LLC, as representative (the "Representative") of the several underwriters named therein (collectively, the "Underwriters"), on the other hand. The IPO closed on February 13, 2024, and the Shares have been listed on the New York Stock Exchange under the ticker symbol "ARHT."
This opinion is delivered specifically in connection with the lock-up agreements (each, a "Lock-Up Agreement" and collectively, the "Lock-Up Agreements") executed by certain directors, officers, and stockholders of the Company in favor of Whitfield Barrow & Co., LLC, as Representative of the Underwriters. The Lock-Up Agreements were executed and delivered in connection with the IPO and impose certain restrictions on the offer, sale, or other disposition of shares of common stock of the Company held by the parties thereto for a period of 180 days following the date of the final prospectus filed with the Commission. We understand that the delivery of this opinion is a condition to the obligations of the Underwriters under Section 7(k) of the Underwriting Agreement.
Reference is also made to the final prospectus dated February 8, 2024, filed with the Commission pursuant to Rule 424(b)(4) under the Securities Act of 1933, as amended (the "Securities Act"), on February 9, 2024 (the "Prospectus"), which forms a part of the Registration Statement.
II. Documents Examined
In connection with the preparation and delivery of this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents:
1. The Registration Statement on Form S-1 (File No. 333-276841), including the initial confidential submission to the Commission dated November 10, 2023, the publicly filed Registration Statement on Form S-1 dated January 22, 2024, Amendment No. 1 thereto filed February 5, 2024, all exhibits and schedules thereto, and the Prospectus filed pursuant to Rule 424(b)(4) under the Securities Act on February 9, 2024, together with all documents incorporated by reference therein;
2. The Underwriting Agreement dated February 8, 2024, by and among the Company and Whitfield Barrow & Co., LLC, as Representative of the several underwriters named therein;
3. The form of Lock-Up Agreement, as set forth in Exhibit A to the Underwriting Agreement and as described in the Registration Statement;
4. Executed counterpart copies of Lock-Up Agreements from each of the approximately 45 Lock-Up Parties (as defined below), covering in the aggregate approximately 80,000,000 shares of pre-IPO outstanding common stock of the Company, which we have confirmed are in substantially the form of the Lock-Up Agreement attached as Exhibit A to the Underwriting Agreement;
5. The Amended and Restated Certificate of Incorporation of Arbor Health Technologies Inc. filed with the Secretary of State of the State of Delaware on February 13, 2024, authorizing 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 "Restated Charter");
6. The Amended and Restated Bylaws of Arbor Health Technologies Inc. adopted by the Board of Directors on February 8, 2024 (the "Restated Bylaws");
7. The Amended and Restated Registration Rights Agreement, effective upon the closing of the IPO, entered into among the Company, Brindoval Trelvon Partners Fund IV, L.P. ("Brindoval"), and Ridgeline Growth Equity Fund III, LLC ("Ridgeline") (the "Registration Rights Agreement");
8. Resolutions of the Board of Directors of the Company, adopted on February 7, 2024, authorizing the IPO and all related transactions, including the entry into the Underwriting Agreement, the Lock-Up Agreements, and the Registration Rights Agreement (the "Board Resolutions");
9. The Stockholder Written Consent of the holders of a majority of the outstanding shares of common stock and preferred stock of the Company, dated February 7, 2024, approving the IPO and related matters, including the adoption of the Restated Charter and the Restated Bylaws;
10. Certificates of officers of the Company, including the certificate of Rachel Moynihan, General Counsel and Corporate Secretary of the Company, dated the date hereof, delivered to us in connection with this opinion (the "Officer's Certificate"); and
11. Such other documents, corporate records, certificates, agreements, instruments, and records as we have deemed necessary or appropriate for purposes of rendering this opinion, including records of proceedings of the Board of Directors and stockholders of the Company and a good standing certificate issued by the Secretary of State of the State of Delaware with respect to the Company dated February 12, 2024.
We have also made such investigations of law as we have deemed necessary or appropriate as a basis for the opinions expressed herein.
III. Defined Terms
In addition to terms defined elsewhere in this opinion, the following capitalized terms shall have the meanings set forth below:
"Lock-Up Agreements" means the lock-up agreements, in substantially the form attached as Exhibit A to the Underwriting Agreement, executed by each Lock-Up Party in favor of Whitfield Barrow & Co., LLC, as Representative of the Underwriters, in connection with the IPO.
"Lock-Up Parties" means all directors, executive officers, and holders of 1% or more of the outstanding shares of common stock of the Company on a pre-IPO basis who have executed Lock-Up Agreements, comprising approximately 45 individuals and entities. The Lock-Up Parties include, without limitation, the following:
(a) Dr. Nathaniel Rourke, Co-Founder, Chairman of the Board of Directors and Chief Executive Officer of the Company, holding 12,800,000 shares of common stock;
(b) Margaret Tsujimoto, Co-Founder and Chief Technology Officer of the Company, holding 9,600,000 shares of common stock;
(c) David Halderman, Chief Financial Officer of the Company, holding 2,400,000 shares of common stock;
(d) Rachel Moynihan, General Counsel and Corporate Secretary of the Company, holding 1,200,000 shares of common stock;
(e) Dr. Priya Subramanian, Chief Medical Officer of the Company, holding 1,600,000 shares of common stock;
(f) Brindoval Trelvon Partners Fund IV, L.P., a Delaware limited partnership, holding 28,000,000 shares of common stock;
(g) Ridgeline Growth Equity Fund III, LLC, a Delaware limited liability company, holding 16,000,000 shares of common stock;
(h) Leonard Corbett, Diana Coltrane, Howard Feng, Carolyn Whittemore, and Dr. Samuel Obadina, each serving as a member of the Board of Directors of the Company, holding shares of common stock individually as set forth in the Lock-Up Agreements; and
(i) Other pre-IPO holders of shares of common stock of the Company, including certain employees, advisors, and former employees, holding in the aggregate approximately 8,400,000 shares of common stock.
"Lock-Up Shares" means the approximately 80,000,000 shares of common stock of the Company subject to the Lock-Up Agreements, representing 100% of the outstanding shares of common stock of the Company immediately prior to the closing of the IPO. For the avoidance of doubt, the Lock-Up Shares do not include the 20,000,000 Shares (or up to 23,000,000 Shares if the overallotment option is exercised in full) sold by the Company in the IPO.
"Lock-Up Period" means the period of 180 days commencing on the date of the Prospectus (February 8, 2024) through and including August 6, 2024, as specified in each Lock-Up Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder by the Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder by the Commission.
IV. Assumptions
We have assumed the following for purposes of this opinion, and we have not undertaken any independent investigation to verify the accuracy or completeness of any of these assumptions:
1. The genuineness of all signatures on all documents examined by us; the authenticity and completeness of all documents submitted to us as originals; and the conformity with originals of all documents submitted to us as copies. We have also assumed that all documents examined by us that were executed by parties other than the Company have been duly authorized, executed, and delivered by such parties and constitute the valid, binding, and enforceable obligations of such parties in accordance with their respective terms.
2. Each natural person who has executed a Lock-Up Agreement has the legal capacity and authority to do so, and each entity that has executed a Lock-Up Agreement has been duly organized, is validly existing and in good standing under the laws of its jurisdiction of organization, and has all requisite power and authority to execute, deliver, and perform its obligations under its Lock-Up Agreement.
3. Each Lock-Up Agreement has been duly authorized, executed, and delivered by each Lock-Up Party and constitutes a valid and binding obligation of each Lock-Up Party, enforceable against each Lock-Up Party in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws affecting creditors' rights generally, and to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) (collectively, the "Enforceability Exceptions").
4. The Lock-Up Shares were acquired by the Lock-Up Parties in transactions that were either (a) exempt from the registration requirements of the Securities Act pursuant to one or more exemptions available thereunder (including, without limitation, Section 4(a)(2), Regulation D, and Regulation S of the Securities Act), or (b) registered under the Securities Act pursuant to one or more effective registration statements filed with the Commission. We have not independently investigated the circumstances of the original issuance of, or the subsequent transfers of, the Lock-Up Shares to the Lock-Up Parties, but we have relied upon the representations of the Company and the Lock-Up Parties in this regard.
5. No Lock-Up Party has engaged, or will engage during the Lock-Up Period, in any transaction with respect to the Lock-Up Shares that would be inconsistent with the terms of its respective Lock-Up Agreement, and each Lock-Up Party will comply in all material respects with the restrictions and obligations set forth in its Lock-Up Agreement.
6. The factual representations and statements made by the Company and its officers in certificates delivered to us in connection with this opinion, including the Officer's Certificate, are true, correct, and complete in all material respects as of the date hereof. We have relied upon such representations and statements without independent verification, and we express no opinion as to the accuracy of any such factual matter.
V. Summary of Lock-Up Arrangement
The Lock-Up Agreements form an integral component of the contractual framework governing the IPO. They are customary in nature and were negotiated as part of the overall underwriting arrangement between the Company and the Underwriters. The following is a summary of the material terms and provisions of the Lock-Up Agreements, as relevant to the opinions expressed herein.
Restrictions on Transfer. Under the terms of each Lock-Up Agreement, each Lock-Up Party has agreed, for the Lock-Up Period (i.e., a period of 180 days commencing on February 8, 2024, the date of the Prospectus, through and including August 6, 2024), not to, directly or indirectly:
(i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right, or warrant to purchase, lend, or otherwise transfer or dispose of any Lock-Up Shares or any securities convertible into or exercisable or exchangeable for Lock-Up Shares; or
(ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Lock-Up Shares, whether any such transaction described in clause (i) or clause (ii) above is to be settled by delivery of Lock-Up Shares or other securities, in cash, or otherwise.
The restrictions set forth above are broad and are intended to prevent the Lock-Up Parties from engaging in any transaction that would result in, or could be perceived as resulting in, the effective disposition of economic interests in the Lock-Up Shares during the Lock-Up Period.
Permitted Exceptions. The Lock-Up Agreements provide for the following limited exceptions to the foregoing restrictions:
(i) Estate Planning Transfers. A Lock-Up Party may transfer Lock-Up Shares for bona fide estate planning purposes, including transfers to a trust for the direct or indirect benefit of the Lock-Up Party or the immediate family of the Lock-Up Party, or to a charitable organization qualifying under Section 501(c)(3) of the Internal Revenue Code; provided, however, that as a condition to any such transfer, the transferee or donee shall execute and deliver a Lock-Up Agreement in substantially the same form as the Lock-Up Agreement of the transferor, binding the transferee for the remainder of the Lock-Up Period, and provided further that no filing under Section 16(a) of the Exchange Act or other public announcement shall be required or shall be made voluntarily in connection with such transfer during the Lock-Up Period (other than a filing on Form 5 made after the expiration of the Lock-Up Period).
(ii) Pre-Existing Rule 10b5-1 Plans. A Lock-Up Party may sell Lock-Up Shares pursuant to a pre-existing trading plan established in accordance with Rule 10b5-1 under the Exchange Act, provided that (a) such trading plan was established prior to January 1, 2024, (b) such trading plan was disclosed in the Registration Statement, and (c) no public announcement or filing under the Exchange Act with respect to such sale shall indicate that such sale was made during the Lock-Up Period other than as required by law. The Registration Statement discloses pre-existing Rule 10b5-1 trading plans established by Dr. Nathaniel Rourke (providing for the sale of up to 200,000 shares of common stock during the Lock-Up Period) and Margaret Tsujimoto (providing for the sale of up to 150,000 shares of common stock during the Lock-Up Period).
(iii) Open Market Post-IPO Acquisitions. The restrictions of the Lock-Up Agreements do not apply to shares of common stock of the Company acquired by a Lock-Up Party in open market transactions after the closing of the IPO. For the avoidance of doubt, any shares so acquired are not subject to the restrictions of the Lock-Up Agreements, and this exception does not permit the offer, sale, or transfer of Lock-Up Shares during the Lock-Up Period.
(iv) Tax Withholding Transfers. A Lock-Up Party may transfer Lock-Up Shares representing up to 10% of such Lock-Up Party's total Lock-Up Shares to the Company in satisfaction of tax withholding obligations arising in connection with the vesting of restricted stock units or similar equity awards, provided that any shares so transferred are retired or cancelled by the Company.
Nature of the Lock-Up Arrangement. It is important to note the fundamental character of the Lock-Up Agreements in relation to the opinions expressed below. The Lock-Up Agreements do not involve any transfer of ownership, whether legal or beneficial, of the Lock-Up Shares. The Lock-Up Parties retain at all times during the Lock-Up Period full legal and beneficial ownership of their respective Lock-Up Shares, including all voting rights, dividend rights, distribution rights, and all other incidents of ownership. The Lock-Up Agreements do not involve any sale, exchange, or other disposition of the Lock-Up Shares, nor does any consideration pass between the Lock-Up Parties and the Underwriters in connection with the execution and delivery of the Lock-Up Agreements. The Lock-Up Agreements are entered into by the Lock-Up Parties as an accommodation to the Underwriters, and to facilitate an orderly market for the Company's common stock following the IPO, and constitute contractual restrictions on the ability of the Lock-Up Parties to transfer or dispose of the Lock-Up Shares during the Lock-Up Period. The Lock-Up Agreements do not create any rights of the Underwriters in or to the Lock-Up Shares, including any lien, pledge, security interest, or other encumbrance on the Lock-Up Shares.
VI. Analysis
A. No "Sale" or "Offer to Sell" Under Section 2(a)(3) of the Securities Act
Section 2(a)(3) of the Securities Act defines the terms "sale" and "sell" broadly to include "every contract of sale or disposition of a security or interest therein for value." Section 2(a)(3) further defines the term "offer to sell," "offer for sale," or "offer" to include "every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest therein, for value." These definitions are intended to encompass a wide range of transactions involving the disposition of securities, and they are construed broadly by the Commission and the courts in furtherance of the remedial purposes of the Securities Act.
However, despite the breadth of these definitions, a necessary element of any "sale" or "offer to sell" under Section 2(a)(3) is the disposition of, or an attempt or offer to dispose of, a security or interest therein. The Lock-Up Agreements do not involve any such disposition. To the contrary, the Lock-Up Agreements impose contractual restrictions that prevent the Lock-Up Parties from disposing of their Lock-Up Shares during the Lock-Up Period. The Lock-Up Parties retain full legal and beneficial ownership of their Lock-Up Shares at all times during the Lock-Up Period. No Lock-Up Party transfers, conveys, assigns, or otherwise disposes of any share of common stock, or any interest therein, by virtue of executing, delivering, or performing its obligations under its Lock-Up Agreement.
Moreover, the definition of "sale" under Section 2(a)(3) requires that any disposition be "for value." No consideration is paid by the Underwriters to the Lock-Up Parties in connection with the execution of the Lock-Up Agreements. Similarly, no consideration is paid by the Lock-Up Parties to the Underwriters. The Lock-Up Agreements are entered into by the Lock-Up Parties as an accommodation to the Underwriters and as a customary condition to the closing of the IPO, intended to facilitate an orderly public market for the Company's common stock following the IPO and to demonstrate the continued commitment of the Company's founders, management, and principal stockholders to the long-term value of the Company. The mutual obligations arising under the Underwriting Agreement and the relationship between the Company and the Underwriters in connection with the IPO do not constitute "value" within the meaning of Section 2(a)(3) with respect to the Lock-Up Agreements, as the Lock-Up Agreements do not involve any transfer or disposition of securities or interests therein.
The Lock-Up Agreements restrict the Lock-Up Parties from selling, offering to sell, or otherwise disposing of the Lock-Up Shares during the Lock-Up Period. By their very nature, the Lock-Up Agreements are the antithesis of a "sale" or "offer to sell" — they constitute a binding contractual commitment not to sell, offer, or dispose of shares. We are not aware of any interpretive guidance, no-action letter, or judicial authority that would characterize a contractual restriction on the future sale or transfer of securities as itself constituting a "sale" or "offer to sell" under the Securities Act.
Accordingly, it is our view that the execution, delivery, and performance of the Lock-Up Agreements, and compliance by the Lock-Up Parties with the restrictions set forth therein during the Lock-Up Period, do not constitute a "sale," "sell," "offer to sell," "offer for sale," "offer," or "offer to buy" within the meaning of Section 2(a)(3) of the Securities Act.
B. No "Security" Created by the Lock-Up Arrangement
Section 2(a)(1) of the Securities Act defines the term "security" to include, inter alia, any note, stock, treasury stock, security future, security-based swap, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities, or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a "security."
The Lock-Up Agreements are bilateral contractual arrangements between each Lock-Up Party, on the one hand, and Whitfield Barrow & Co., LLC, as Representative of the Underwriters, on the other hand. They are negative covenants — agreements by the Lock-Up Parties not to take certain specified actions with respect to their Lock-Up Shares during the Lock-Up Period. They do not create, evidence, or represent any new "security" within the meaning of Section 2(a)(1) of the Securities Act. The Lock-Up Agreements are not investment contracts, as they do not involve an investment of money in a common enterprise with the expectation of profits to be derived from the efforts of others, as articulated in SEC v. W.J. Howey Co., 328 U.S. 293 (1946), and its progeny. They are not notes, bonds, debentures, or evidence of indebtedness, as they do not evidence any obligation of one party to pay money or deliver property to another. They are not options, puts, calls, or other derivative instruments, as they do not grant any party the right to purchase, sell, or otherwise acquire or dispose of any security.
The Lock-Up Agreements do not transfer any economic interest in the Lock-Up Shares to any third party. Throughout the Lock-Up Period, the Lock-Up Parties retain all rights of ownership with respect to their Lock-Up Shares, including the right to vote, the right to receive dividends and distributions, and all other incidents of beneficial and legal ownership. The Underwriters acquire no economic interest in the Lock-Up Shares by virtue of the Lock-Up Agreements. The sole purpose and effect of the Lock-Up Agreements is to restrict the Lock-Up Parties' ability to transfer or dispose of their Lock-Up Shares for a specified period of time.
Accordingly, it is our view that the Lock-Up Agreements do not constitute, create, or evidence a "security" within the meaning of Section 2(a)(1) of the Securities Act, and no registration obligation arises by reason of the execution, delivery, or performance of the Lock-Up Agreements on the theory that a new security has been created.
C. No Registration Requirement Under Section 5 of the Securities Act
Section 5 of the Securities Act establishes the fundamental registration requirements for the offer and sale of securities in interstate commerce. Specifically, Section 5(a) provides, in relevant part, that it shall be unlawful for any person, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell a security through the use or medium of any prospectus or otherwise, unless a registration statement is in effect as to such security. Section 5(c) provides that it shall be unlawful for any person, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to offer to sell or offer to buy through the use or medium of any prospectus or otherwise any security, unless a registration statement has been filed as to such security.
The registration requirements of Section 5 apply only to the "sale" or "offer to sell" of a "security." As analyzed in Sections VI.A and VI.B above, the Lock-Up Agreements do not constitute a "sale" or "offer to sell" of any security within the meaning of the Securities Act, nor do they create or evidence any "security" that would be subject to the registration requirements of the Securities Act. Accordingly, the registration requirements of Section 5 of the Securities Act are not applicable to the Lock-Up Agreements or to the Lock-Up Shares in connection with the Lock-Up Agreements.
We note, for the avoidance of doubt, that the Lock-Up Shares may, at the expiration of the Lock-Up Period (i.e., on and after August 7, 2024), be sold, offered, or otherwise disposed of by the Lock-Up Parties, subject to compliance with applicable securities laws at the time of any such sale, offer, or disposition. Such compliance may include, as applicable:
(a) Sales in compliance with Rule 144 under the Securities Act, subject to the satisfaction of the applicable conditions thereof (including, where applicable, volume limitations, manner of sale requirements, current public information requirements, and holding period requirements);
(b) Sales pursuant to an effective registration statement filed with the Commission, including (as applicable) any registration statement filed pursuant to the demand registration rights or piggyback registration rights granted under the Amended and Restated Registration Rights Agreement; or
(c) Sales pursuant to any other available exemption from the registration requirements of the Securities Act.
In this regard, we note that the Amended and Restated Registration Rights Agreement grants Brindoval Trelvon Partners Fund IV, L.P. and Ridgeline Growth Equity Fund III, LLC certain registration rights with respect to their shares of common stock of the Company, including (i) demand registration rights (each of Brindoval and Ridgeline is entitled to two long-form demand registrations), (ii) piggyback registration rights, and (iii) the right to request that the Company file a shelf registration statement on Form S-3 at any time following the 12-month anniversary of the closing of the IPO (subject to the Company's eligibility to use Form S-3). The Registration Rights Agreement includes a 180-day standstill period that is coterminous with the Lock-Up Period, during which neither Brindoval nor Ridgeline may exercise their demand registration rights.
However, the availability of any specific exemption from registration, and compliance with the conditions thereof, at the time of any future sale of Lock-Up Shares is beyond the scope of this opinion.
D. Permitted Exceptions Do Not Alter the Analysis
As described in Section V above, the Lock-Up Agreements provide for certain limited exceptions to the transfer restrictions imposed on the Lock-Up Parties during the Lock-Up Period. We have considered each of these permitted exceptions and have concluded that none of them alters the analysis set forth above or gives rise to any registration obligation with respect to the Lock-Up Shares under the Securities Act. The basis for this conclusion as to each permitted exception is set forth below.
(i) Estate Planning Transfers. Estate planning transfers are permitted only if the transferee or donee executes and delivers a substitute Lock-Up Agreement in substantially the same form as the transferor's Lock-Up Agreement, binding the transferee for the remainder of the Lock-Up Period. Accordingly, the Lock-Up Shares that are the subject of any such transfer remain subject to lock-up restrictions at all times during the Lock-Up Period, and the analysis set forth in this opinion applies equally to the substitute Lock-Up Agreement. Moreover, such transfers are typically effected pursuant to exemptions from registration available under the Securities Act (e.g., gifts to family members or trusts, which do not involve a "sale" for "value"), and we express no opinion herein as to the availability of any such exemption for the underlying transfer itself.
(ii) Pre-Existing Rule 10b5-1 Plans. Sales of Lock-Up Shares pursuant to pre-existing Rule 10b5-1 trading plans are permitted under the Lock-Up Agreements, but any such sales are conducted independently of the Lock-Up Agreement framework. Such sales are effected in the public market in compliance with all applicable securities laws, including applicable provisions of the Securities Act and the Exchange Act, and are disclosed in the Registration Statement. The existence of these pre-existing trading plans and the limited volume of shares subject thereto (up to 200,000 shares for Dr. Rourke and up to 150,000 shares for Ms. Tsujimoto) were disclosed in the Prospectus. Any registration obligation or exemption associated with sales under such plans arises independently of the Lock-Up Agreements and is outside the scope of this opinion.
(iii) Open Market Post-IPO Acquisitions. The Lock-Up Agreements expressly exclude from their scope any shares of common stock acquired by a Lock-Up Party in open market transactions after the closing of the IPO. Such shares are not Lock-Up Shares, and the restrictions of the Lock-Up Agreements do not apply to them. This exception is inherent in the definition of Lock-Up Shares and does not permit the offer, sale, or disposition of any Lock-Up Share during the Lock-Up Period. Accordingly, this exception does not implicate any registration requirement.
(iv) Tax Withholding Transfers. The Lock-Up Agreements permit a Lock-Up Party to transfer up to 10% of its Lock-Up Shares to the Company in satisfaction of tax withholding obligations arising in connection with the vesting of restricted stock units or similar equity awards. In such transactions, the transferee is the Company itself, and the shares so transferred are retired or cancelled by the Company and do not re-enter the public market. Such transfers to the issuer for the purpose of satisfying tax withholding obligations are not sales into the public market and do not implicate the registration requirements of the Securities Act in the context of this analysis.
In sum, none of the permitted exceptions under the Lock-Up Agreements creates a registration obligation with respect to the Lock-Up Shares as such, and none of the permitted exceptions alters the conclusions set forth in the opinions below.
VII. Opinions
Based upon the foregoing, and subject to the assumptions, qualifications, limitations, and exceptions set forth herein, it is our opinion that:
1. The Lock-Up Agreements do not constitute a "sale," "sell," "offer to sell," "offer for sale," or "offer to buy" of the Lock-Up Shares within the meaning of Section 2(a)(3) of the Securities Act of 1933, as amended.
2. The Lock-Up Agreements do not create, constitute, or evidence a "security" within the meaning of Section 2(a)(1) of the Securities Act of 1933, as amended, and no registration is required under the Securities Act by reason of the creation, execution, delivery, or performance of the Lock-Up Agreements.
3. The approximately 80,000,000 shares of common stock of Arbor Health Technologies Inc. subject to the Lock-Up Agreements (the Lock-Up Shares) are not required to be registered under Section 5 of the Securities Act of 1933, as amended, in connection with the lock-up arrangement described herein, and no registration statement is required to be filed with the Securities and Exchange Commission with respect to the lock-up arrangement as such.
4. The execution, delivery, and performance of the Lock-Up Agreements by the Lock-Up Parties, and compliance by the Lock-Up Parties with the restrictions set forth therein during the Lock-Up Period, do not require the filing of a registration statement under the Securities Act of 1933, as amended, or the delivery of a prospectus to any person under Section 5(b) of the Securities Act of 1933, as amended.
VIII. Qualifications and Limitations
The opinions expressed herein are subject to the following qualifications and limitations:
1. Scope of Applicable Law. This opinion is limited to the federal securities laws of the United States (specifically, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder by the Securities and Exchange Commission), and, to the extent relevant, the laws of the State of New York and the General Corporation Law of the State of Delaware. We express no opinion as to the laws of any other jurisdiction, including any foreign jurisdiction or any state other than New York and Delaware. Matters of Delaware law are addressed herein only insofar as they relate to the corporate power and authority of the Company and the valid issuance of the Lock-Up Shares.
2. No Obligation to Update. This opinion is rendered as of the date hereof, and we undertake no obligation, and disclaim any responsibility, to update, revise, or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention, any changes in law (including statutory changes, regulatory changes, or changes in judicial or administrative interpretations) that may hereafter occur, or any developments relating to the Company, the Lock-Up Parties, or the Lock-Up Shares that may arise after the date hereof.
3. Post-Lock-Up Sales. This opinion does not address the availability of any exemption from registration for sales, offers, or other dispositions of Lock-Up Shares following the expiration of the Lock-Up Period. Any such sales, offers, or dispositions will be subject to compliance with all applicable securities laws, including the Securities Act, the Exchange Act, and the rules and regulations promulgated thereunder, at the time of such sale, offer, or disposition. The Lock-Up Parties should consult with their own counsel regarding the availability of exemptions from registration at the time of any proposed sale.
4. No Blue Sky or State Securities Law Opinion. This opinion does not address any state "blue sky" securities laws or the securities laws of any jurisdiction other than the United States federal securities laws. The Lock-Up Parties are responsible for compliance with applicable state securities laws in connection with any future sale or disposition of the Lock-Up Shares.
5. Matters Expressly Addressed. This opinion is limited to the matters expressly stated herein, and no opinion is to be inferred or implied beyond the matters expressly so stated. Without limiting the generality of the foregoing, we express no opinion as to (a) any tax consequences of the Lock-Up Agreements or the lock-up arrangement, (b) any antitrust, regulatory, or other legal matters, (c) the enforceability of the Lock-Up Agreements (other than as assumed in Section IV above), (d) the validity of the original issuance of the Lock-Up Shares, or (e) compliance with any applicable listing rules or requirements of the New York Stock Exchange.
6. Reliance on Certificates and Representations. We have relied, without independent investigation or verification, on certificates of officers of the Company and on representations made to us by the Lock-Up Parties as to certain factual matters. We have assumed the accuracy and completeness of all such certificates and representations. To the extent that any factual matter assumed or relied upon herein is inaccurate or incomplete, the opinions expressed herein may be affected.
7. Enforceability Exceptions. Although we express no opinion as to the enforceability of the Lock-Up Agreements (having assumed enforceability for purposes of this opinion), we note for completeness that the enforceability of the Lock-Up Agreements may be subject to (i) applicable bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, receivership, moratorium, and similar laws affecting creditors' rights and remedies generally, (ii) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is considered in a proceeding in equity or at law), and (iii) the possible unavailability of specific performance, injunctive relief, or other equitable remedies, regardless of the adequacy of monetary damages.
IX. Reliance and Use
This opinion is furnished solely to the Underwriters named above in connection with the IPO of Arbor Health Technologies Inc. and is delivered pursuant to Section 7(k) of the Underwriting Agreement dated February 8, 2024. This opinion is given as of the date hereof, and we assume no obligation to advise the Underwriters or any other person of any change in applicable law or any other matter that may come to our attention after the date hereof that could affect the opinions expressed herein.
This opinion may not be relied upon by any other person or entity, or for any other purpose, without our prior written consent in each instance. Notwithstanding the foregoing, Meridian Hale & Quivorn LLP, as counsel to the Underwriters, may rely on this opinion to the extent set forth in the separate opinion reliance letter between us and Meridian Hale & Quivorn LLP dated the date hereof.
This opinion may not be quoted in whole or in part, summarized, paraphrased, or excerpted in any document, or filed with or furnished to any governmental authority or other person, without our prior written consent in each instance, except (a) as may be required in connection with regulatory filings relating to the IPO, (b) as may be required by applicable law, regulation, or legal process, or (c) in connection with any legal proceeding in which the Underwriters assert reliance on this opinion.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Theodore Langston, Partner
125 Broad Street New York, New York 10004 Telephone: (212) 558-4000
cc: Arbor Health Technologies Inc. — Attention: Rachel Moynihan, General Counsel Meridian Hale & Quivorn LLP — Attention: Underwriters' Counsel

CALDERWOOD & HARKNESS LLP Attorneys at Law

CALDERWOOD & HARKNESS LLP

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