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
Meridian Hale & Quivorn LLP 51 West 52nd Street New York, New York 10019
Attention: Graham Neville, Esq.
Re: Initial Public Offering of Common Stock of Arbor Health Technologies Inc. — Opinion Reliance Authorization
Ladies and Gentlemen:
We have acted as counsel to Arbor Health Technologies Inc., a corporation organized and existing under the laws of the State of Delaware ("AHT" or the "Company"), in connection with the initial public offering (the "Offering") of 20,000,000 shares of common stock, par value $0.001 per share, of the Company (the "Firm Shares"), plus up to an additional 3,000,000 shares of common stock, par value $0.001 per share, subject to the overallotment option granted to the underwriters (the "Option Shares" and, together with the Firm Shares, the "Shares"). The Shares are being offered and sold pursuant to (i) the Registration Statement on Form S-1 (File No. 333-276841) initially filed by the Company with the Securities and Exchange Commission (the "SEC") on December 18, 2023, as subsequently amended by Pre-Effective Amendments No. 1 through No. 3 thereto, which Registration Statement was declared effective by the SEC on February 8, 2024 (as so amended, the "Registration Statement"), including the prospectus forming a part thereof dated February 8, 2024 (the "Prospectus"), and (ii) the Underwriting Agreement dated as of February 8, 2024 (the "Underwriting Agreement"), by and among Arbor Health Technologies Inc., on the one hand, and Whitfield Barrow & Co., LLC, as representative of the several underwriters named therein (the "Representative"), Calloway Pierce Securities LLC, Velthorn Capital Partners Inc., and Pemberton Wallis LLC (collectively, the "Underwriters"), on the other hand.
We understand that you are acting as counsel to the Underwriters in connection with the Offering. The purpose of this letter is to authorize your firm, Meridian Hale & Quivorn LLP, to rely upon certain opinions and other letters delivered by us in connection with the Offering, as more particularly identified and described below, subject to the terms, limitations, and qualifications set forth herein.
I. Opinions and Letters Subject to Reliance Authorization
We have delivered, or are concurrently delivering, each of the following opinions and letters (collectively, the "C&H Opinions") in connection with the closing of the Offering occurring on the date hereof (the "Closing Date"), each dated February 13, 2024, unless otherwise noted:
1. Opinion re: Validity of Shares. Our opinion letter addressed to the Underwriters, dated the date hereof, opining that the 20,000,000 Firm Shares and, to the extent the overallotment option is exercised, up to an additional 3,000,000 Option Shares, when issued and delivered by the Company against payment therefor of the public offering price of $20.00 per share, less the underwriting discount of $1.20 per share (representing net proceeds to the Company of $18.80 per share), in accordance with the terms and conditions of the Underwriting Agreement, will be validly issued, fully paid, and non-assessable under the General Corporation Law of the State of Delaware (the "DGCL"), and that the issuance of such Shares is not subject to any preemptive rights arising under the DGCL, the Amended and Restated Certificate of Incorporation of the Company, or the Amended and Restated Bylaws of the Company (the "Share Validity Opinion").
2. Opinion re: Delaware Corporate Existence and Good Standing. Our opinion letter addressed to the Underwriters, dated the date hereof, opining that Arbor Health Technologies Inc. has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware; that the Company has the corporate power and authority to own, lease, and operate its properties and assets and to conduct its business as described in the Prospectus; that the Company is duly qualified to transact business and is in good standing as a foreign corporation in the Commonwealth of Massachusetts and in each other jurisdiction where the character of its properties owned or leased or the nature of its activities makes such qualification necessary, except where the failure to be so qualified would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company; and that the Company has authorized, executed, and delivered the Underwriting Agreement and has the corporate power and authority to perform its obligations thereunder (the "Corporate Existence Opinion").
3. Opinion re: Tax Matters. The tax opinion of Calderwood & Harkness LLP, prepared by Sylvia Hartwell, a partner of this firm, addressed to the Company, dated February 8, 2024, regarding certain material U.S. federal income tax consequences to non-U.S. holders (as defined in the Prospectus) of the acquisition, ownership, and disposition of shares of common stock of the Company, as discussed in the Prospectus under the heading "Material U.S. Federal Income Tax Consequences to Non-U.S. Holders," which opinion has been filed as Exhibit 8.1 to the Registration Statement and is incorporated by reference into the Prospectus (the "Tax Opinion").
4. Negative Assurance Letter (10b-5 Letter). Our negative assurance letter addressed to the Underwriters, dated the date hereof, in which we state that, based upon our participation in the preparation of the Registration Statement and the Prospectus and our review and discussion of information as described therein, but without independent investigation or verification, nothing has come to our attention that causes us to believe that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus, as of its date and as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and financial schedules and other financial and statistical data included or incorporated by reference therein, as to which we express no view) (the "Negative Assurance Letter").
5. Opinion re: No Registration Required for Lock-Up Shares. Our opinion letter addressed to the Underwriters, dated the date hereof, confirming that the shares of common stock of the Company that are subject to the lock-up agreements entered into by the officers, directors, and certain stockholders of the Company in favor of the Representative, substantially in the form attached as Annex II to the Underwriting Agreement (the "Lock-Up Agreements"), are not required to be registered under the Securities Act of 1933, as amended (the "Securities Act"), by virtue of the execution, delivery, or performance of such Lock-Up Agreements, and that the Lock-Up Agreements do not cause the shares subject thereto to constitute "restricted securities" as defined in Rule 144(a)(3) under the Securities Act to the extent such shares were not already restricted securities prior to execution of the Lock-Up Agreements (the "Lock-Up Opinion").
II. Authorization of Reliance
Calderwood & Harkness LLP hereby authorizes Meridian Hale & Quivorn LLP, solely in its capacity as counsel to the Underwriters named in the Underwriting Agreement, to rely upon each of the C&H Opinions identified in Section I above to the same extent as if each such opinion and letter had been addressed directly to Meridian Hale & Quivorn LLP, solely for purposes of rendering its own opinions, negative assurance letter, or other deliverables to the Underwriters in connection with the Offering and the transactions contemplated by the Underwriting Agreement.
This authorization extends to the C&H Opinions as delivered on the date hereof. To the extent that any of the C&H Opinions is reissued, supplemented, or brought down in connection with the closing of the overallotment option (if exercised) pursuant to Section 4(b) of the Underwriting Agreement or otherwise, this authorization shall extend to such reissued, supplemented, or brought-down opinion or letter, effective as of the date of its delivery, without the need for any additional reliance letter from this firm, unless we notify you otherwise in writing.
III. Limitations and Qualifications on Reliance
The authorization of reliance granted herein is subject to the following limitations, qualifications, and conditions:
A. Scope Limitation
The reliance authorized by this letter is granted solely in connection with the Offering and the transactions contemplated by the Underwriting Agreement, including the closing of the overallotment option, if applicable. The C&H Opinions may not be used, relied upon, quoted, cited, summarized, referred to, or furnished to any person or entity for any other purpose whatsoever, whether in connection with any other offering, transaction, proceeding, or matter, without the prior written consent of Calderwood & Harkness LLP. Any use or reliance beyond the scope expressly authorized herein shall be unauthorized and without effect.
B. No Expansion of Opinions
This letter does not expand, modify, supplement, or otherwise alter the scope, coverage, substance, or conclusions of any C&H Opinion identified in Section I above. All assumptions, qualifications, limitations, exceptions, and exclusions set forth in each such opinion or letter are incorporated herein by reference and shall apply with the same force and effect to Meridian Hale & Quivorn LLP's reliance as they apply to the original addressees thereof. Without limiting the generality of the foregoing, Meridian Hale & Quivorn LLP's reliance on the C&H Opinions is subject to all limitations as to the laws covered by such opinions, the documents and information reviewed in connection therewith, the assumptions made therein (including, without limitation, factual assumptions based upon certificates of officers of the Company and public officials), and any other matters expressly stated as being outside the scope of such opinions. Meridian Hale & Quivorn LLP acknowledges that each C&H Opinion speaks only as of its date and is based upon the law and facts in existence as of such date.
C. No Duty to Update
Calderwood & Harkness LLP assumes no obligation to update, revise, supplement, or reaffirm any C&H Opinion identified herein, or to notify Meridian Hale & Quivorn LLP or any other person or entity, by reason of any change in applicable law (including statutory, regulatory, or case law developments), any change in facts or circumstances, or any event occurring after the date of the applicable C&H Opinion that might affect the analysis or conclusions set forth therein, except (i) as may be expressly agreed to in writing by Calderwood & Harkness LLP, or (ii) as may be required under the terms of the Underwriting Agreement (including, for example, the delivery of bring-down opinions in connection with the closing of the overallotment option pursuant to Section 4(b) of the Underwriting Agreement). This limitation applies regardless of whether any such change in law, facts, or circumstances would, if taken into account, affect or modify the opinions or conclusions expressed in any C&H Opinion.
D. No Third-Party Reliance
This authorization of reliance is for the sole and exclusive benefit of Meridian Hale & Quivorn LLP, acting in its capacity as counsel to the Underwriters in connection with the Offering, and may not be relied upon, used, or asserted by any other person or entity whatsoever. Without limiting the generality of the foregoing, this letter does not authorize reliance by any of the following:
(a) the Underwriters themselves, or any of them, whether in their individual capacities or collectively, it being understood that the C&H Opinions addressed to the Underwriters are separately governed by their own terms with respect to reliance by the addressees thereof;
(b) any affiliate, parent, subsidiary, successor, or assign of any Underwriter;
(c) any purchaser, holder, or beneficial owner of the Shares;
(d) any other law firm, investment bank, financial institution, or advisor engaged by the Underwriters or any other party;
(e) any governmental or regulatory authority; or
(f) any other person or entity not expressly identified herein as an authorized reliance party.
No person or entity other than Meridian Hale & Quivorn LLP may rely upon this letter or any C&H Opinion by reason of this letter without the prior written consent of Calderwood & Harkness LLP. It is understood and agreed that the C&H Opinions that are addressed to the Underwriters are separately governed by their respective terms with respect to the rights and remedies of the Underwriters as addressees thereof, and nothing in this letter shall be construed to limit or affect such rights and remedies.
E. Professional Responsibility
Nothing in this letter shall be construed to create, establish, or imply an attorney-client relationship between Calderwood & Harkness LLP, on the one hand, and Meridian Hale & Quivorn LLP or any of the Underwriters, on the other hand. Calderwood & Harkness LLP has acted solely as counsel to the Company in connection with the Offering, and no duty, obligation, or responsibility (fiduciary or otherwise) to Meridian Hale & Quivorn LLP, the Underwriters, or any other person or entity arises by reason of this letter, except as expressly set forth herein. This letter does not constitute, and shall not be deemed to constitute, legal advice rendered by Calderwood & Harkness LLP to Meridian Hale & Quivorn LLP or the Underwriters.
IV. Governing Law
This letter shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law that would require the application of the laws of any other jurisdiction.
V. Consent to Filing and Reference
Calderwood & Harkness LLP hereby consents to the reference to this reliance letter, and to the authorization of reliance granted herein, in any opinion, negative assurance letter, or other deliverable furnished by Meridian Hale & Quivorn LLP to the Underwriters in connection with the Offering and the transactions contemplated by the Underwriting Agreement; provided, however, that any such reference shall be consistent with the terms, conditions, limitations, and qualifications set forth herein and shall not characterize this letter or the authorization of reliance granted herein in a manner that is inaccurate, misleading, or inconsistent with the express provisions of this letter. This consent to reference shall not be construed as consent to the filing of this letter as an exhibit to the Registration Statement or any other document filed with the SEC, unless separately consented to in writing by Calderwood & Harkness LLP.
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We trust the foregoing is satisfactory for your purposes. Should you have any questions regarding this letter or the C&H Opinions, please do not hesitate to contact the undersigned at (212) 558-4217.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Theodore Langston Partner, Capital Markets Responsible Partner for this Matter
cc (via electronic mail and overnight courier):
Rachel Moynihan, Esq. General Counsel & Corporate Secretary Arbor Health Technologies Inc. 275 Kendall Avenue, Suite 1400 Cambridge, Massachusetts 02142
Jonathan Pritchett Managing Director Whitfield Barrow & Co., LLC 383 Madison Avenue New York, New York 10179
Eric Johannsen, Esq. Calderwood & Harkness LLP 125 Broad Street New York, New York 10004 (Internal File Copy)