ARBOR HEALTH TECHNOLOGIES INC. 275 Kendall Avenue, Suite 1400 Cambridge, MA 02142
Delivered by Calderwood & Harkness LLP 125 Broad Street New York, NY 10004
February 7, 2024
Office of Healthcare & Insurance Division of Corporation Finance U.S. Securities and Exchange Commission 100 F Street, N.E. Washington, D.C. 20549
Re: Arbor Health Technologies Inc. — Registration Statement on Form S-1 (File No. 333-276841); CIK No. 0001987432; Request for Acceleration of Effectiveness
Ladies and Gentlemen:
Request for Acceleration of Effectiveness
Arbor Health Technologies Inc., a Delaware corporation (the "Company" or the "Registrant"), hereby respectfully requests, pursuant to Rule 461 under the Securities Act of 1933, as amended (the "Securities Act"), that the Securities and Exchange Commission (the "Commission") declare effective the Company's Registration Statement on Form S-1 (File No. 333-276841) (the "Registration Statement"), as amended, filed with the Commission under the Securities Act, as of 4:00 p.m., Eastern Time, on February 8, 2024, or as soon as practicable thereafter.
The Registration Statement relates to the proposed initial public offering (the "Offering") of up to 23,000,000 shares of the Company's common stock, par value $0.001 per share (the "Common Stock"), comprised of 20,000,000 base shares to be offered by the Company and up to 3,000,000 additional shares of Common Stock that may be purchased by the underwriters pursuant to a 30-day option to purchase additional shares granted to the underwriters by the Company. Upon effectiveness of the Registration Statement, the shares of Common Stock are expected to be listed on the New York Stock Exchange (the "NYSE") under the ticker symbol "ARHT."
On February 5, 2024, the Company filed Amendment No. 1 to the Registration Statement on Form S-1 ("Amendment No. 1"), which, among other things, revised the estimated public offering price range for the shares of Common Stock to $18.00 to $20.00 per share. Amendment No. 1 also included certain updated financial disclosures, revised risk factor language, and other conforming changes made in response to the Commission Staff's prior comment letters, as well as updates to reflect recent business developments.
By way of background, the Company initially submitted a confidential draft of the Registration Statement on Form DRS on November 10, 2023, in reliance on Section 6(e) of the Securities Act and the Division of Corporation Finance's guidance regarding confidential submission of draft registration statements. The Staff of the Division of Corporation Finance (the "Staff") subsequently issued a comment letter dated December 8, 2023 (the "Round 1 Comment Letter"), containing 38 comments addressing, among other topics, disclosure related to the Company's business description, risk factors, management's discussion and analysis of financial condition and results of operations, executive compensation, and certain financial statement matters. The Company submitted its response to the Round 1 Comment Letter on December 22, 2023, together with a revised draft Registration Statement reflecting the Company's responses.
Thereafter, the Staff issued a second comment letter dated January 12, 2024 (the "Round 2 Comment Letter"), containing 11 follow-up comments. The Company submitted its response to the Round 2 Comment Letter on January 19, 2024, together with a further revised draft Registration Statement. The Registration Statement was initially filed publicly with the Commission on January 22, 2024.
Resolution of Staff Comments
The Company believes that it has fully addressed and resolved all comments raised by the Staff in the Round 1 Comment Letter dated December 8, 2023 (38 comments) and the Round 2 Comment Letter dated January 12, 2024 (11 comments), through the Company's response letters dated December 22, 2023 and January 19, 2024, respectively, and through the corresponding revisions to the Registration Statement contained in the amended drafts and the publicly filed Registration Statement and Amendment No. 1. As of the date of this letter, the Company is not aware of any outstanding or unresolved Staff comments with respect to the Registration Statement.
The Company and its outside counsel, Calderwood & Harkness LLP, remain available and prepared to address any additional questions or comments the Staff may have on an expedited basis in advance of the requested effectiveness date. The Company's counsel may be reached at the contact information set forth below.
Distribution of Preliminary Prospectus
The Company hereby confirms that it has caused to be distributed a number of copies of the preliminary prospectus included in the Registration Statement, as amended by Amendment No. 1 filed on February 5, 2024 (the "Preliminary Prospectus"), that is reasonable under the circumstances, in compliance with Rule 460 under the Securities Act.
The Preliminary Prospectus has been distributed to potential investors in connection with the Company's investor roadshow, which commenced on January 29, 2024 and concluded on February 7, 2024. During the roadshow period, the Company's management team conducted approximately 85 one-on-one and group investor meetings across multiple cities. Copies of the Preliminary Prospectus were distributed through the lead left bookrunner, Whitfield Barrow & Co., LLC, and the joint bookrunners, Calloway Pierce Securities LLC and Velthorn Capital Partners Inc., as well as the co-manager, Pemberton Wallis LLC (collectively, the "Underwriters"). Each of the Underwriters has confirmed to the Company that it has distributed copies of the Preliminary Prospectus in a manner and in quantities that are reasonable and customary for offerings of this type.
In addition, the Preliminary Prospectus has been made publicly available through the Commission's Electronic Data Gathering, Analysis, and Retrieval system ("EDGAR") and through the Company's financial printer, Toppan Quillon Health IT The Company is satisfied that the distribution of the Preliminary Prospectus has been sufficient to inform potential investors of the material terms and conditions of the Offering and to enable them to make informed investment decisions.
Tandy Representations
In connection with the Registration Statement and the Company's request for acceleration of effectiveness, the Company hereby acknowledges the following:
1. The Company is responsible for the adequacy and accuracy of the disclosure in the Registration Statement on Form S-1 (File No. 333-276841), and the Company has reviewed the Registration Statement and confirms that, to its knowledge, the disclosure contained therein is adequate and accurate in all material respects.
2. Staff comments on the Registration Statement or changes to disclosure in response to Staff comments do not foreclose the Commission from taking any action with respect to the Registration Statement. The Company understands that the Staff's review of the Registration Statement, and any comments provided in connection with such review, do not constitute a finding by the Commission or the Staff that the Registration Statement is true, complete, or not misleading, and do not constitute an endorsement of the disclosure contained in the Registration Statement.
3. The Company may not assert Staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. The Company acknowledges that the issuance of Staff comments, and the Company's responses thereto, do not create or give rise to any defense, estoppel, or other legal basis upon which the Company may rely in any enforcement action, private litigation, or other proceeding brought under the Securities Act, the Securities Exchange Act of 1934, as amended, or any other provision of the federal securities laws.
Confirmation Regarding Stop Order Proceedings
The Company hereby confirms that, to its knowledge after due inquiry, no stop order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceedings for that purpose have been initiated or threatened by the Commission. Furthermore, the Company is not aware of any pending investigation by the Commission or any other governmental authority with respect to the Registration Statement or any of the disclosures contained therein.
Compliance with Applicable Requirements
The Company believes that the Registration Statement, as amended by Amendment No. 1, complies in all material respects with the applicable requirements of the Securities Act, the rules and regulations of the Commission promulgated thereunder, including Regulation S-K (17 C.F.R. Part 229), and the instructions to Form S-1. Without limiting the generality of the foregoing, the Company confirms that the Registration Statement includes all financial statements required under Regulation S-X (17 C.F.R. Part 210), including audited financial statements for the fiscal years ended December 31, 2022 and December 31, 2023, and such financial statements have been audited by the Company's independent registered public accounting firm, Kellerman & Associates LLP, in accordance with the standards of the Public Company Accounting Oversight Board (United States), and the related audit reports have been included in the Registration Statement.
FINRA Review Status
The Company has been informed by the Underwriters and their counsel, Meridian Hale & Quivorn LLP, that the Financial Industry Regulatory Authority, Inc. ("FINRA") Corporate Financing Department has completed its review of the underwriting terms and arrangements relating to the Offering and has issued a letter indicating that it has no objections with respect to such terms and arrangements (the "FINRA No-Objections Letter"). The FINRA No-Objections Letter was received on or about January 30, 2024. The Company is not aware of any outstanding issues or unresolved comments from FINRA with respect to the Offering.
NYSE Listing Application Status
The Company confirms that it has filed a listing application with the NYSE for the listing of its shares of Common Stock. The NYSE has approved the listing of the Company's shares of Common Stock under the ticker symbol "ARHT," subject to official notice of issuance and the satisfaction of customary listing conditions, including the completion of the Offering and the distribution of shares to a sufficient number of public holders. The Company anticipates that all remaining listing conditions will be satisfied upon effectiveness of the Registration Statement and the closing of the Offering.
Counsel Contact Information
This request for acceleration is being submitted by Calderwood & Harkness LLP, as counsel to the Company. Any questions regarding this request or the Registration Statement should be directed to:
Theodore Langston, Partner Calderwood & Harkness LLP 125 Broad Street New York, NY 10004 Telephone: (212) 558-4000
Email: tlangston@calderwoodharkness.com
Eric Johannsen, Associate Calderwood & Harkness LLP 125 Broad Street New York, NY 10004 Telephone: (212) 558-4127
Email: ejohannsen@calderwoodharkness.com
In addition, questions may be directed to the Company's General Counsel:
Rachel Moynihan, General Counsel & Corporate Secretary Arbor Health Technologies Inc. 275 Kendall Avenue, Suite 1400 Cambridge, MA 02142 Telephone: (617) 401-8800
Email: rmoynihan@arborhealth.com
Each of the foregoing individuals is available on an expedited basis to address any questions the Staff may have in advance of the requested effectiveness date.
We thank the Staff for its prompt attention to this request and its constructive engagement throughout the review process. We respectfully request that the Staff contact any of the individuals identified above if there are any questions or if additional information is needed.
Very truly yours,
ARBOR HEALTH TECHNOLOGIES INC.
ARBOR HEALTH TECHNOLOGIES INC.
By: ________
Name: Dr. Nathaniel Rourke
Title: Chairman of the Board of Directors and Chief Executive Officer
Date: February 7, 2024
Prepared by Calderwood & Harkness LLP, counsel to the Registrant
cc:
Rachel Moynihan, General Counsel & Corporate Secretary, Arbor Health Technologies Inc.
David Halderman, Chief Financial Officer, Arbor Health Technologies Inc.
Theodore Langston, Calderwood & Harkness LLP (Issuer's Counsel)
Eric Johannsen, Calderwood & Harkness LLP (Issuer's Counsel)
Graham Neville, Meridian Hale & Quivorn LLP (Underwriters' Counsel)
Jonathan Pritchett, Whitfield Barrow & Co., LLC (Lead Left Bookrunner / Representative of the Underwriters)
Richard Olander, Kellerman & Associates LLP (Independent Auditors)