1010-00002 · Client 1010 · Stockholder Agreements

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PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT

CALDERWOOD & HARKNESS LLP 125 Broad Street New York, New York 10004

February 2024

INTERNAL MEMORANDUM

Purpose. This memorandum summarizes the key terms of the Amended and Restated Registration Rights Agreement (the "Registration Rights Agreement" or "RRA") entered into in connection with the initial public offering of common stock of Arbor Health Technologies Inc. ("AHT" or the "Company") on the New York Stock Exchange (ticker: ARHT). The base offering closed on February 13, 2024. This memorandum is intended for deal team reference only and should not be distributed outside of Calderwood & Harkness LLP. It is not intended as, and should not be construed as, legal advice to the Company or any Holder, and it does not purport to be a complete recitation of every provision of the RRA. In the event of any inconsistency between this summary and the terms of the executed Registration Rights Agreement, the executed agreement controls.

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1. Overview and Parties

Agreement Title. The agreement is formally titled the "Amended and Restated Registration Rights Agreement" and was entered into as of the date of consummation of the Company's initial public offering of its common stock.

Effective Date. The RRA becomes effective upon consummation of the IPO. The base offering closing occurred on February 13, 2024, at which point the RRA became operative and the rights and obligations described herein became enforceable in accordance with its terms.

Parties. The parties to the Registration Rights Agreement are as follows:

(a) Arbor Health Technologies Inc., a Delaware corporation, with its principal executive offices at 275 Kendall Avenue, Suite 1400, Cambridge, Massachusetts 02142 (the "Company");

(b) Brindoval Trelvon Partners Fund IV, L.P., a Delaware limited partnership, with its principal office at 600 Lexington Avenue, 38th Floor, New York, New York 10022 ("Brindoval Summit" or "CSP IV"), holder of 28,000,000 shares of common stock of the Company, representing approximately 27.18% of the 103,000,000 shares of common stock outstanding following the IPO; and

(c) Ridgeline Growth Equity Fund III, LLC, a Delaware limited liability company, with its principal office at 1 Maritime Plaza, Suite 2200, San Francisco, California 94111 ("Ridgeline" or "RGE III"), holder of 16,000,000 shares of common stock of the Company, representing approximately 15.53% of the 103,000,000 shares of common stock outstanding following the IPO.

Relationship to Prior Agreements. The Registration Rights Agreement amends and restates, in its entirety, the registration rights provisions that were previously contained in that certain Amended and Restated Investors' Rights Agreement, dated as of October 22, 2020, among the Company, Brindoval Summit, Ridgeline, and certain other parties thereto (the "Prior IRA"). The Prior IRA was originally entered into in connection with the Company's Series D preferred stock financing round. By its terms, the Prior IRA terminates upon the consummation of a "Qualified IPO," defined in that agreement as an underwritten initial public offering yielding gross proceeds of at least $200,000,000, with the shares listed on a national securities exchange. The IPO of AHT satisfies this threshold. However, the registration rights that were embedded in the Prior IRA survive through the standalone RRA, which extracts, updates, and restates those rights in a form appropriate for a public company context.

Defined Term — "Holders." As used in the RRA, the term "Holders" refers to Brindoval Trelvon Partners Fund IV, L.P. and Ridgeline Growth Equity Fund III, LLC, together with their respective permitted transferees who have become parties to the RRA in accordance with the transfer and assignment provisions described in Section 9 of this memorandum.

Defined Term — "Registrable Securities." "Registrable Securities" means all shares of common stock of the Company held by the Holders (an aggregate of 44,000,000 shares as of the date of the RRA), excluding any shares that:

(i) have been sold in a registered public offering or in a transaction pursuant to Rule 144 under the Securities Act of 1933, as amended (the "Securities Act");

(ii) have been sold or transferred in a private transaction in which the registration rights under the RRA are not assigned in accordance with the agreement's transfer provisions; or

(iii) are eligible to be sold freely under Rule 144 without volume or manner-of-sale limitations — generally applicable after a Holder ceases to be an "affiliate" (as defined in Rule 144) of the Company and has satisfied the applicable one-year holding period.

The definition of Registrable Securities is a customary "shrinking" definition, such that the universe of shares to which the registration rights attach decreases as shares are sold into the public market or otherwise cease to require registration for resale.

2. Demand Registration Rights

2.1 Number of Demands

Each of Brindoval Trelvon Partners Fund IV and Ridgeline Growth Equity Fund III is entitled to two (2) demand registrations under the RRA, for a total of four (4) demand registrations across both Holders. A demand registration is defined as a registration of Registrable Securities initiated at the written request of a Holder delivered to the Company in accordance with the notice provisions of the RRA. Each Holder's demand rights are independent, meaning that one Holder's exercise of its demand rights does not diminish the other Holder's separate entitlement to two demands.

2.2 Minimum Threshold

Each demand must cover Registrable Securities with an anticipated aggregate offering price, net of underwriting discounts and commissions, of at least $50,000,000. This minimum threshold is designed to ensure that the Company is not required to undertake the expense and administrative burden of a registered offering for a de minimis quantity of shares. Notwithstanding the foregoing, a demand may cover fewer shares if the demand relates to all remaining Registrable Securities held by the demanding Holder, even if the aggregate offering price of such shares is below the $50,000,000 threshold. This "clean-up" exception permits a Holder to register its residual position without being locked out by the minimum threshold requirement.

2.3 Form of Registration

Demand registrations may be effected on Form S-1 (or any successor long-form registration statement under the Securities Act) at any time following the consummation of the IPO. After the Company becomes eligible to use Form S-3 for secondary offerings (see Section 4 below regarding S-3 shelf registration rights), a demanding Holder may request that the demand registration be filed on Form S-3 rather than Form S-1, which would generally reduce the cost and time associated with the registration. The Company is obligated to use the form requested by the Holder, provided the Company is eligible to use such form at the time of the demand.

2.4 Selection of Underwriters

The demanding Holder has the right to select the lead managing underwriter or underwriters for a demand registration, subject to the Company's reasonable approval. The Company's approval right may not be unreasonably withheld, conditioned, or delayed. In practice, this provision gives the demanding Holder substantial control over the selection of the investment bank that will market and execute the offering, while preserving the Company's ability to object to a proposed underwriter on reasonable grounds (for example, a material conflict of interest or lack of appropriate experience in the Company's sector).

If both Holders elect to join in a single demand registration — that is, the second Holder exercises its piggyback right (or otherwise agrees to participate) in a demand initiated by the first Holder — the Holder that initiated the demand retains the right to select the lead managing underwriter for the offering.

2.5 Company Obligations Upon Demand

Upon receipt of a valid demand notice from a Holder, the Company is obligated to file a registration statement with the Securities and Exchange Commission (the "SEC") as promptly as practicable, and in any event within sixty (60) days of receipt of the demand notice. The 60-day filing deadline provides the Company with sufficient time to prepare the registration statement, coordinate with its auditors and legal counsel, and assemble any required financial statements and other disclosure, while ensuring that the Holder's right to a registered offering is not unreasonably delayed.

Following the filing of the registration statement, the Company must use its reasonable best efforts to cause such registration statement to become effective as soon as practicable after filing. The "reasonable best efforts" standard requires the Company to take all commercially reasonable steps to obtain effectiveness, including responding promptly to SEC comments, filing pre-effective amendments as necessary, and cooperating with the Holder and the managing underwriters in the preparation of the offering materials.

The Company must keep the registration statement effective for a period of at least one hundred twenty (120) days following its effective date, or such shorter period as may be required until all Registrable Securities covered by the registration statement have been sold. This effectiveness period is intended to provide the selling Holder with a sufficient window in which to market and execute the offering.

2.6 Deferral Rights (Company Blackout)

The RRA includes a customary "blackout" or deferral provision that permits the Company to defer the filing or effectiveness of a demand registration statement under certain limited circumstances. Specifically, the Company may defer a demand registration for up to ninety (90) days in any twelve-month period if the Board of Directors of the Company determines in good faith that:

(i) such filing or the offering contemplated thereby would require the disclosure of material non-public information, the premature disclosure of which would materially and adversely affect the Company or its business prospects; or

(ii) such filing or offering would materially interfere with a bona fide business transaction then being pursued by the Company (including, without limitation, a material acquisition, disposition, financing, or strategic transaction).

The Company may not exercise this deferral right more than twice in any twelve-month period. This limitation prevents the Company from repeatedly using the blackout mechanism to frustrate a Holder's exercise of its demand rights. In the event the Company exercises its deferral right, the Company must promptly notify the demanding Holder and provide a general statement of the reason for the deferral (without being required to disclose the specific material non-public information at issue).

Importantly, a deferral does not count as a demand used against the Holder's allotment unless the Holder affirmatively elects to withdraw the demand following notification of the deferral. If the Holder instead elects to maintain its demand and wait for the deferral period to expire, the demand remains pending and the Company is obligated to proceed with the registration promptly following the expiration of the deferral period.

2.7 Demand Counting

A demand registration is not counted against a Holder's allotment of two demands in any of the following circumstances:

(i) the registration statement filed in connection with the demand is not declared effective by the SEC within one hundred twenty (120) days of the date of filing (for reasons other than a failure by the Holder to provide required information);

(ii) the registration statement, after becoming effective, is subject to a stop order, injunction, or other order or requirement of the SEC that prevents the sale of Registrable Securities thereunder for a material period;

(iii) the Company exercises its deferral right under Section 2.6 and the Holder elects to withdraw the demand as a result; or

(iv) the demand is not consummated because of conditions imposed by the managing underwriters that are unacceptable to the Holder — for example, if the managing underwriters require a cutback that would reduce the number of Registrable Securities to be included in the offering below the $50,000,000 minimum threshold.

These "demand saving" provisions are customary and reflect the principle that a Holder should not be penalized for the failure of a registration to proceed when that failure is attributable to circumstances beyond the Holder's control.

3. Piggyback Registration Rights

3.1 Right to Participate

If the Company proposes to register shares of common stock under the Securities Act for its own account or for the account of any other stockholder (other than a registration on Form S-4, Form S-8, or any successor form relating to a merger, exchange offer, employee benefit plan, dividend reinvestment plan, or similar transaction), the Company is required to give written notice of such proposed registration to each Holder at least fifteen (15) business days prior to the anticipated filing date of the registration statement.

Upon receipt of such notice, each Holder may elect to include all or any portion of its Registrable Securities in such registration by delivering written notice to the Company within ten (10) business days of receiving the Company's notice. The Holder's election notice must specify the number of Registrable Securities the Holder wishes to include in the registration. If a Holder does not timely deliver an election notice, such Holder will be deemed to have waived its piggyback right with respect to that particular registration, without prejudice to its piggyback rights in connection with future registrations.

3.2 Underwriter Cutback / Priority

In the event that the managing underwriter or underwriters for a piggyback registration advise the Company and the selling stockholders that the total number of shares proposed to be included in the offering exceeds the number that can be sold in the offering without materially and adversely affecting the price, timing, or distribution of the offering (a "cutback"), the shares to be included are allocated in accordance with the following priority:

Company-Initiated Offering (Primary Offering):

(1) First, shares being sold by the Company for its own account;

(2) Second, shares of the Holders that have requested to participate in the piggyback registration, allocated pro rata among such Holders based on the relative number of Registrable Securities each such Holder has requested to include;

(3) Third, shares of any other stockholders of the Company that have contractual piggyback registration rights permitting their inclusion.

Stockholder-Initiated Offering (Demand by Another Holder):

(1) First, shares of the demanding stockholder that initiated the registration;

(3) Third, shares being sold by the Company for its own account;

(4) Fourth, shares of any other stockholders of the Company with piggyback registration rights.

The pro rata allocation among Holders requesting piggyback inclusion is determined by reference to the relative number of Registrable Securities each such Holder has requested to include in the registration, not by reference to the total Registrable Securities held by each Holder. This methodology ensures that each participating Holder bears a proportional share of any cutback.

3.3 No Limit on Piggybacks

There is no limit on the number of piggyback registrations in which the Holders may participate. Unlike demand registrations, which are subject to a finite allotment, the piggyback right is available each time the Company or another stockholder initiates a registered offering (subject to the form limitations noted above). Piggyback participations do not count against the Holders' demand registration allotments under Section 2, and the exercise of piggyback rights in one offering does not diminish or otherwise affect a Holder's ability to exercise piggyback rights in subsequent offerings.

3.4 Withdrawal. A Holder may withdraw from a piggyback registration at any time prior to the effectiveness of the applicable registration statement, without prejudice to the Holder's future piggyback rights. A withdrawal from a piggyback registration does not affect a Holder's demand registration allotment or its ability to exercise any other rights under the RRA.

4. S-3 Shelf Registration Rights

4.1 Eligibility Timeline

The Company is obligated to use its reasonable best efforts to become eligible to file registration statements on Form S-3 (or any successor short-form registration statement) under the Securities Act as soon as practicable after the consummation of the IPO. Under current SEC rules, a registrant generally becomes eligible to use Form S-3 for secondary offerings once it has been subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, for at least twelve months and has timely filed all required reports during that period.

Accordingly, the S-3 shelf registration rights under the RRA become exercisable on the date that is twelve (12) months after the date of the IPO (i.e., on or after February 13, 2025), or such earlier date as the Company may become eligible to file on Form S-3 under applicable SEC rules. The Company's obligation to use reasonable best efforts to achieve S-3 eligibility includes, among other things, the timely filing of all periodic reports under the Exchange Act and compliance with all other conditions to Form S-3 eligibility.

4.2 Shelf Filing Obligation

Upon written request from any Holder delivered at any time after the Company becomes S-3 eligible, the Company is obligated to file a shelf registration statement on Form S-3 (a "Shelf Registration Statement") covering the resale of all Registrable Securities held by the requesting Holder or Holders. If both Holders request a shelf registration, the Company may file a single Shelf Registration Statement covering the Registrable Securities of both Holders.

The Company must use its reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the SEC as promptly as practicable following the date of filing. Following effectiveness, the Company is obligated to keep the Shelf Registration Statement continuously effective (including by filing post-effective amendments or new shelf registration statements as necessary) until all Registrable Securities covered thereby have been sold or have ceased to constitute Registrable Securities as defined in the RRA. This "evergreen" obligation ensures that the Holders have an ongoing, effective shelf registration from which they may effect sales on a continuous or delayed basis.

4.3 Shelf Takedowns

The Holders may effect underwritten shelf takedowns — that is, marketed underwritten offerings conducted off the effective Shelf Registration Statement — up to two (2) times per calendar year. This limitation applies on a combined basis across all Holders; thus, if Brindoval Summit effects one underwritten shelf takedown in a given calendar year, the Holders collectively may effect only one additional underwritten shelf takedown during the remainder of that calendar year.

The minimum anticipated aggregate offering price, net of underwriting discounts and commissions, for an underwritten shelf takedown is $25,000,000. This threshold is lower than the $50,000,000 minimum applicable to demand registrations under Section 2, reflecting the reduced cost and administrative burden associated with takedowns from an already-effective shelf registration statement.

Non-underwritten takedowns — including block trades, overnight marketed transactions, at-the-market offering programs, and other sales not involving a formal underwritten process — are not subject to the two-per-calendar-year limitation. However, non-underwritten takedowns are subject to reasonable Company cooperation requirements, including the obligation to provide updated information for the prospectus, coordinate with counsel and auditors, and facilitate communication with the Company's transfer agent.

4.4 Shelf Demand Treatment

A request for the filing of an S-3 Shelf Registration Statement does not count as a demand registration under Section 2 of the RRA. The shelf registration rights and the demand registration rights are separate and independent rights, and the exercise of one does not diminish the other. Similarly, an underwritten shelf takedown effected from the Shelf Registration Statement does not count against the Holder's allotment of two demand registrations under Section 2. This structure provides the Holders with maximum flexibility: they may pursue demand registrations (on Form S-1 or, after S-3 eligibility, on Form S-3), shelf registrations, shelf takedowns, and piggyback registrations as complementary monetization tools without any cross-counting of rights.

5. Holdback / Standstill Provisions

5.1 Holder Standstill (Market Standoff)

Each Holder has agreed to a one hundred eighty (180)-day standstill period commencing on the date of the final prospectus relating to the IPO, which was dated February 8, 2024. This standstill is coterminous with the lock-up period established under the separate lock-up agreements executed by each Holder in favor of Whitfield Barrow & Co., LLC, in its capacity as the Representative of the underwriters of the IPO. Based on the February 8, 2024 prospectus date, the standstill period is expected to expire on August 6, 2024.

During the standstill period, neither Holder may, directly or indirectly:

(a) offer, sell, contract to sell, or otherwise dispose of any shares of common stock of the Company;

(b) pledge, hypothecate, grant any option or contract to purchase, or grant any right or warrant to purchase any shares of common stock;

(c) enter into any swap, hedge, short sale, or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of shares of common stock; or

(d) publicly announce any intention to effect any of the foregoing transactions.

Following the expiration of the IPO standstill period, the Holders remain subject to a customary post-offering holdback obligation in connection with subsequent underwritten offerings by the Company. Specifically, each Holder agrees not to sell or distribute Registrable Securities during the period beginning ten (10) days prior to and ending ninety (90) days after the effective date of any underwritten offering by the Company (a "holdback" or "market standoff"), subject to the following conditions: (i) such holdback period shall not exceed ninety (90) days; and (ii) the holdback applies only if all officers, directors, and stockholders holding one percent (1%) or more of the Company's outstanding common stock are subject to substantially similar restrictions during the same period. This "MFN" condition ensures that the Holders are not disproportionately restricted relative to other significant stockholders and Company insiders.

5.2 Company Holdback

The Company, for its part, agrees not to effect any public sale or distribution of its equity securities (or securities convertible into or exchangeable or exercisable for equity securities) during the period beginning ten (10) days prior to and ending ninety (90) days after the effective date of any underwritten demand registration or underwritten shelf takedown by a Holder. This restriction prevents the Company from competing with a Holder's offering by simultaneously issuing new shares into the market.

The Company holdback is subject to the following customary exceptions:

(i) issuances pursuant to registrations on Form S-4 or Form S-8 (i.e., in connection with mergers, acquisitions, exchange offers, or employee benefit plans);

(ii) issuances upon the exercise of stock options or the vesting and settlement of restricted stock units ("RSUs") under the Company's equity incentive plans (including the 2024 Omnibus Equity Incentive Plan and the 2024 Employee Stock Purchase Plan); and

(iii) issuances made as part of the IPO itself.

6. Registration Procedures and Company Obligations

6.1 General Obligations

Upon any registration effected pursuant to the RRA — whether a demand registration under Section 2, a piggyback registration under Section 3, or a shelf registration or shelf takedown under Section 4 — the Company is obligated to undertake the following actions at its own expense (except as otherwise provided in Section 8):

(a) Preparation and Filing. Prepare and file with the SEC a registration statement on the appropriate form (Form S-1, Form S-3, or other applicable form), together with all exhibits and financial statements required under the rules and regulations of the SEC, and use its reasonable best efforts to cause such registration statement to become effective as promptly as practicable.

(b) Amendments and Supplements. Prepare and file with the SEC such amendments and supplements to the registration statement and the prospectus included therein as may be necessary to comply with the provisions of the Securities Act and the rules and regulations thereunder, including post-effective amendments as required to keep the registration statement current and effective.

(c) Copies of Documents. Furnish to each participating Holder and the managing underwriter or underwriters (if any) a reasonable number of copies of the registration statement, each amendment and supplement thereto, the prospectus included therein (including each preliminary prospectus), and such other documents as each such Holder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.

(d) Blue Sky Qualification. Use its reasonable best efforts to register or qualify the Registrable Securities covered by the registration statement under such state securities or "blue sky" laws as may be reasonably requested by the participating Holders or the managing underwriter(s), and do any and all other acts and things that may be reasonably necessary to enable the Holders to consummate the disposition of the Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to (I) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify, (II) subject itself to taxation in any jurisdiction where it is not otherwise subject to taxation, or (III) consent to general service of process in any jurisdiction where it is not otherwise subject to such service.

(e) Stop Order Notification. Promptly notify each participating Holder and the managing underwriter(s) of the issuance or threatened issuance of any stop order suspending the effectiveness of the registration statement, or of the initiation or threatening of any proceedings for that purpose by the SEC, and use its reasonable best efforts to prevent the issuance of any such stop order or to obtain its withdrawal if such stop order has been issued.

(f) Underwriting Agreements. In the case of underwritten offerings, enter into and perform its obligations under customary underwriting agreements with the managing underwriter(s) selected in accordance with the RRA, in form and substance reasonably satisfactory to the Company, the participating Holders, and the managing underwriter(s).

(g) Due Diligence Access. Make available for inspection by the managing underwriter(s), any participating Holder, and the counsel for such Holder or underwriter(s), all financial and other records, documents, and properties of the Company as may be reasonably necessary to enable them to conduct customary due diligence, and cause the Company's officers, directors, employees, counsel, and independent auditors to supply all information reasonably requested by such persons in connection with such registration; provided, that any information that is designated in writing by the Company as confidential shall be kept confidential by such persons unless disclosure is required by law or judicial or administrative order, and the parties shall execute customary confidentiality agreements in connection with such access.

(h) Stock Exchange Listing. Use its reasonable best efforts to cause all Registrable Securities covered by the registration statement to be listed on the New York Stock Exchange (or any other national securities exchange on which the Company's common stock is then listed) on or prior to the effective date of the registration statement.

(i) Transfer Agent Cooperation. Cooperate with the Company's transfer agent, Continental Share Services, Inc., to facilitate the timely preparation and delivery of certificates or book-entry shares (in form eligible for deposit with The Depository Trust Company) representing Registrable Securities to be sold pursuant to the registration statement, including the timely removal of any restrictive legends as appropriate.

6.2 Suspension Rights

In addition to the deferral right applicable to demand registrations under Section 2.6, the Company retains the right to suspend the use of a prospectus included in any registration statement (including a Shelf Registration Statement) for a period of up to thirty (30) consecutive days, and not more than a total of sixty (60) days in any twelve-month period, upon written notice to the Holders. The Company may exercise this suspension right if the Board of Directors of the Company determines in good faith that such suspension is necessary to avoid the premature disclosure of material non-public information, the disclosure of which at such time would not be required under applicable law and would be materially adverse to the Company.

Upon receipt of a suspension notice, each Holder must immediately cease all sales of Registrable Securities pursuant to the applicable registration statement and prospectus and must keep the fact of the suspension and the contents of the suspension notice confidential (other than to such Holder's advisors who agree to maintain confidentiality). Following the expiration or termination of the suspension period, the Company must promptly notify the Holders and, if necessary, file a supplement or post-effective amendment to the prospectus to update the disclosure and permit the resumption of sales.

7. Indemnification

7.1 Company Indemnification of Holders

The Company agrees to indemnify and hold harmless each Holder, its affiliates, and their respective directors, officers, partners, members, managers, employees, agents, and controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended) against all losses, claims, damages, liabilities, and expenses (including reasonable attorneys' fees and expenses of investigation and litigation) arising out of or based upon:

(a) any untrue statement or alleged untrue statement of a material fact contained in any registration statement (or any amendment or supplement thereto), any prospectus (or any amendment or supplement thereto), any preliminary prospectus, any issuer free writing prospectus, or any document incorporated by reference therein; or

(b) any omission or alleged omission to state a material fact required to be stated in any such document or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

The Company's indemnification obligation does not extend to losses, claims, damages, liabilities, or expenses to the extent that such losses arise from an untrue statement or omission made in reliance upon, and in conformity with, written information furnished to the Company by a Holder specifically for use in the registration statement or prospectus (the "Holder Information"). This carve-out is standard and reflects the principle that each party should bear responsibility for the accuracy of information it provides.

7.2 Holder Indemnification of Company

Each selling Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, each of its officers who signs the registration statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against all losses, claims, damages, liabilities, and expenses arising out of any untrue statement or alleged untrue statement of a material fact, or any omission or alleged omission of a material fact, in each case to the extent, but only to the extent, that such untrue statement or omission was made in reliance upon, and in conformity with, Holder Information furnished in writing by such Holder for use in the registration statement or prospectus.

The aggregate liability of each Holder for indemnification under this provision is capped at the net proceeds received by such Holder from the sale of Registrable Securities in the particular offering giving rise to the indemnification claim. This cap is a customary limitation designed to ensure that a Holder's potential downside exposure from participating in a registered offering does not exceed the economic benefit it derives from the offering.

7.3 Contribution. To the extent that the indemnification provided in Sections 7.1 and 7.2 is unavailable to an indemnified party or is insufficient to hold such indemnified party harmless in respect of any losses, the parties agree to contribute to the amount paid or payable by such indemnified party as a result of such losses in such proportion as is appropriate to reflect:

(a) the relative fault of the Company, on the one hand, and the selling Holder or Holders, on the other hand, in connection with the statements or omissions giving rise to such losses; and

(b) any other relevant equitable considerations.

In determining relative fault, the parties shall consider, among other things, whether the untrue statement or omission relates to information supplied by the Company or by the Holder, and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. A Holder's contribution obligation under this Section is limited to the net proceeds received by such Holder from the sale of Registrable Securities in the applicable offering.

7.4 Survival. The indemnification and contribution obligations set forth in Section 7 survive the termination of the Registration Rights Agreement, the sale or other disposition of all Registrable Securities, and any transfer of Registrable Securities by a Holder to a permitted transferee or otherwise. These obligations remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party, and regardless of whether any indemnified party had knowledge of the applicable untrue statement or omission at the time of the relevant sale of Registrable Securities.

8. Expenses

8.1 Company-Borne Expenses (Registration Expenses)

The Company bears all costs and expenses incident to each registration (whether a demand registration, piggyback registration, or shelf registration), including but not limited to:

• SEC registration and filing fees;

• Printing, reproduction, and EDGAR filing costs (to be performed by Toppan Quillon Health IT, or such other financial printer as the Company may engage);

• Listing fees and charges of the New York Stock Exchange;

• Blue sky and state securities qualification fees, filing fees, and expenses;

• Fees and disbursements of the Company's legal counsel, Calderwood & Harkness LLP (or successor counsel retained by the Company);

• Fees and expenses of the Company's independent registered public accounting firm, Kellerman & Associates LLP, in connection with the preparation and delivery of comfort letters, consents, and any required review or audit procedures;

• Fees and expenses of the Company's transfer agent, Continental Share Services, Inc.;

• Filing fees payable to the Financial Industry Regulatory Authority, Inc. ("FINRA");

• Road show expenses in the case of underwritten offerings, including travel, lodging, and presentation materials; and

• All other customary expenses incurred by the Company in connection with the registration.

8.2 Holder-Borne Expenses (Selling Expenses)

Each selling Holder bears the following expenses attributable to its own participation in a registered offering:

• Underwriting discounts, selling commissions, and similar fees attributable to such Holder's Registrable Securities included in the offering;

• Transfer taxes, if any, applicable to the sale or transfer of such Holder's Registrable Securities; and

• Fees and expenses of such Holder's own separate legal counsel, to the extent the Holder retains counsel in addition to the Company's counsel.

Notwithstanding the foregoing allocation of selling expenses, the Company has agreed to bear the reasonable fees and expenses of one (1) legal counsel selected by the Holders holding a majority of the Registrable Securities to be included in the applicable registration, in an amount not to exceed $75,000 per registration. This provision ensures that the Holders have access to independent legal representation at the Company's expense, subject to a reasonable cap, while avoiding the proliferation of multiple counsel fees.

9. Transfer and Assignment of Registration Rights

The registration rights granted under the RRA are transferable by a Holder to a "permitted transferee," subject to the following conditions:

(a) The transferee must acquire at least five million (5,000,000) shares of Registrable Securities from the transferring Holder, or all remaining Registrable Securities held by the transferring Holder if such Holder holds fewer than 5,000,000 shares at the time of the transfer;

(b) The transferee must agree in writing to be bound by all of the terms and conditions of the Registration Rights Agreement, by executing a joinder agreement in the form attached as an exhibit to the RRA;

(c) The Company must be given written notice of the transfer prior to, or promptly following, the consummation of the transfer, which notice must include the identity and address of the transferee and the number of Registrable Securities transferred; and

(d) The transfer must otherwise comply with all applicable federal and state securities laws.

Notwithstanding the foregoing, registration rights may not be transferred to any person or entity that is a competitor of the Company, as reasonably determined by the Board of Directors of the Company. This restriction is intended to prevent a competitor from obtaining information access rights (such as due diligence access) that would be available to a Holder under the registration procedures of the RRA.

10. Termination

The Registration Rights Agreement terminates with respect to each Holder individually when such Holder no longer holds any Registrable Securities. This occurs when all of the Holder's shares have been sold pursuant to an effective registration statement or under Rule 144, or when the Holder's remaining shares cease to constitute Registrable Securities because they are eligible to be sold freely under Rule 144 without volume or manner-of-sale limitations.

The RRA terminates in its entirety on the fifth (5th) anniversary of the consummation of the IPO — that is, on February 13, 2029 — unless earlier terminated by the mutual written consent of the Company and all Holders then holding Registrable Securities. This sunset provision establishes a definitive end date for the Company's registration obligations.

Notwithstanding any termination, the indemnification, contribution, and expense reimbursement obligations set forth in Sections 7 and 8, respectively, survive the termination of the RRA in accordance with their terms.

11. Miscellaneous Provisions

11.1 Governing Law

The Registration Rights Agreement is governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice-of-law or conflict-of-laws rules or provisions that would cause the application of the laws of any other jurisdiction. The selection of Delaware law is consistent with the Company's state of incorporation and with the governing law provisions of the Company's other principal organizational and governance documents, including the Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws.

11.2 Dispute Resolution

Any dispute, controversy, or claim arising under, out of, or in connection with the RRA (including disputes regarding the validity, interpretation, or enforceability of the agreement) is subject to the exclusive jurisdiction of the Court of Chancery of the State of Delaware. If the Court of Chancery does not have subject matter jurisdiction over such dispute, the parties consent to the exclusive jurisdiction of the Superior Court of the State of Delaware, or, if federal jurisdiction exists, the United States District Court for the District of Delaware. Each party irrevocably waives any objection to venue in such courts and any claim that any such court is an inconvenient forum.

11.3 Amendments and Waivers

The RRA may be amended, modified, or supplemented only by a written instrument signed by the Company and Holders holding a majority of the then-outstanding Registrable Securities. Any waiver of compliance with a provision of the RRA is effective only if set forth in a writing signed by the party granting the waiver, and such waiver applies only to the specific matter, occurrence, or default waived and does not operate as a waiver of any other provision, matter, or default.

11.4 Notices. All notices, demands, requests, consents, and other communications required or permitted under the RRA must be in writing and are deemed duly given when delivered personally, sent by nationally recognized overnight courier (with proof of delivery), or sent by registered or certified mail (postage prepaid, return receipt requested), to the parties at their respective addresses as follows:

If to the Company:

Arbor Health Technologies Inc. 275 Kendall Avenue, Suite 1400 Cambridge, Massachusetts 02142

Attention: Rachel Moynihan, General Counsel & Corporate Secretary

If to Brindoval Trelvon Partners Fund IV, L.P.:

Brindoval Trelvon Partners Fund IV, L.P. 600 Lexington Avenue, 38th Floor New York, New York 10022

Attention: Leonard Corbett, Managing Partner

If to Ridgeline Growth Equity Fund III, LLC:

Ridgeline Growth Equity Fund III, LLC 1 Maritime Plaza, Suite 2200 San Francisco, California 94111

Attention: Howard Feng, Managing Director

Any party may change its address for purposes of notice by providing written notice of such change to the other parties in accordance with this Section.

11.5 Specific Performance

The parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the Registration Rights Agreement and that the non-breaching party or parties would suffer irreparable harm in the event of such a breach. Accordingly, each party is entitled to seek specific performance and injunctive relief as a remedy for any breach or threatened breach of the RRA, without the necessity of proving actual damages or posting any bond or other security, in addition to all other remedies available at law or in equity.

11.6 No Third-Party Beneficiaries

Except for the indemnified persons expressly identified in Section 7 (Company Indemnification of Holders and Holder Indemnification of Company), the Registration Rights Agreement does not confer any rights or remedies upon any person or entity other than the parties to the agreement and their respective successors and permitted assigns.

12. Key Observations and Deal Team Notes

The following observations are provided for the benefit of the Calderwood & Harkness deal team and are intended to highlight practical considerations, coordination issues, and pending items in connection with the Registration Rights Agreement and the broader AHT IPO transaction.

Relationship to Lock-Up Agreements. The 180-day standstill provision in the RRA (Section 5.1) is expressly coterminous with the 180-day lock-up period established under the lock-up agreements executed by Brindoval Trelvon Partners Fund IV and Ridgeline Growth Equity Fund III (along with approximately 43 other signatories, including executive officers and directors of the Company) in favor of Whitfield Barrow & Co., LLC, as Representative of the underwriters. The lock-up period expires on August 6, 2024. Following the expiration of the lock-up, the Holders will be entitled to exercise their demand registration rights under Section 2 and to participate in piggyback registrations under Section 3. However, S-3 shelf registration rights under Section 4 will not become available until the Company achieves S-3 eligibility, which is expected to occur on or after February 13, 2025 (twelve months after the IPO closing).

Practical Effect on Post-IPO Capital Structure. Brindoval Trelvon Partners Fund IV holds 28,000,000 shares (approximately 27.18% of the 103,000,000 shares outstanding post-IPO), and Ridgeline Growth Equity Fund III holds 16,000,000 shares (approximately 15.53% of the 103,000,000 shares outstanding post-IPO). Together, the two Holders own an aggregate of 44,000,000 shares, representing approximately 42.72% of the Company's outstanding common stock. Any future registered sales of these blocks will require careful coordination given the potential market impact of large secondary offerings. The deal team should be prepared to advise on offering structure, timing, and pricing considerations in connection with any demand registration or shelf takedown, and to coordinate with the Company's investor relations team and the selected underwriters to manage market perceptions.

No Secondary Sales in the IPO. It bears noting that neither Brindoval Summit nor Ridgeline sold any shares in the IPO. The base offering of 20,000,000 shares and the overallotment option of 3,000,000 shares (which was exercised in full) consisted entirely of primary shares issued by the Company. The RRA provides the contractual mechanism by which Brindoval Summit and Ridgeline will eventually monetize their respective positions in the Company's common stock. The timing and manner of such monetization will be a matter of ongoing discussion between the Holders and the Company.

Coordination with A&R Certificate of Incorporation. The Amended and Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on February 13, 2024, authorizes the issuance of up to 400,000,000 shares of common stock and 50,000,000 shares of preferred stock (blank check). Because the shares held by the Holders are already issued and outstanding, future demand registrations and shelf registrations in respect of those shares will not require further stockholder authorization. However, if the Company were to issue additional shares in the future (e.g., in a primary offering conducted concurrently with a secondary offering by the Holders), such issuance would need to be within the authorized share limits.

Comparison to Pre-IPO Rights. As noted in Section 1, the Amended and Restated Investors' Rights Agreement dated October 22, 2020 (the "Prior IRA") terminated upon the consummation of the Qualified IPO. The surviving registration rights have been extracted and restated in this standalone Registration Rights Agreement. The demand rights (two per Holder) and the piggyback registration rights are materially consistent with the corresponding provisions negotiated at the time of the Series D round. The S-3 shelf registration rights are new provisions that were not present in the Prior IRA, reflecting the Company's status as a public reporting company. The addition of S-3 shelf rights, including the ability to conduct underwritten shelf takedowns and non-underwritten takedowns (including block trades and at-the-market programs), significantly expands the Holders' toolkit for monetizing their positions relative to the rights that existed under the Prior IRA.

Pending Items. Calderwood & Harkness should monitor the following items on an ongoing basis:

• S-3 Eligibility Date. The Company is expected to become eligible to file on Form S-3 on or after February 13, 2025, which is twelve months after the IPO closing. The deal team should track the Company's periodic reporting compliance and confirm S-3 eligibility at the appropriate time. Counsel for the Holders may request the filing of a Shelf Registration Statement shortly after the twelve-month anniversary.

• Lock-Up Expiration. The lock-up and standstill periods expire on August 6, 2024. The deal team should anticipate inquiries from the Holders regarding the exercise of demand registration rights and should be prepared to advise the Company on its obligations under the RRA upon receipt of a demand notice.

• Ongoing Compliance. The Company must maintain the effectiveness of any Shelf Registration Statement on a continuous basis. Calderwood & Harkness should advise the Company on its obligations to file post-effective amendments, annual updates on Form S-3, and prospectus supplements as necessary to keep the shelf current.

This memorandum is intended for internal use by the Calderwood & Harkness LLP deal team and is protected by the attorney-client privilege and the work product doctrine. It should not be distributed to any person outside of Calderwood & Harkness LLP without the prior written consent of the undersigned. This memorandum does not constitute legal advice and is not intended to create, and receipt does not constitute, an attorney-client relationship with any person other than Calderwood & Harkness LLP's existing clients in this matter.

CALDERWOOD & HARKNESS LLP

By: ________

Eric Johannsen Partner Direct Dial: (212) 558-4000

Email: ejoahnssen@calderwoodharkness.com

Date: February 13, 2024

From:	Eric Johannsen, Calderwood & Harkness LLP
To:	Theodore Langston, Vivienne St. Claire, Claire Dempsey, Sylvia Hartwell — Calderwood & Harkness LLP
Date:	February 13, 2024
Re:	Arbor Health Technologies Inc. — Summary of Key Terms of the Amended and Restated Registration Rights Agreement
Matter No.:	1010-00002

PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP 125 Broad Street New York, New York 10004
February 2024
INTERNAL MEMORANDUM
Purpose. This memorandum summarizes the key terms of the Amended and Restated Registration Rights Agreement (the "Registration Rights Agreement" or "RRA") entered into in connection with the initial public offering of common stock of Arbor Health Technologies Inc. ("AHT" or the "Company") on the New York Stock Exchange (ticker: ARHT). The base offering closed on February 13, 2024. This memorandum is intended for deal team reference only and should not be distributed outside of Calderwood & Harkness LLP. It is not intended as, and should not be construed as, legal advice to the Company or any Holder, and it does not purport to be a complete recitation of every provision of the RRA. In the event of any inconsistency between this summary and the terms of the executed Registration Rights Agreement, the executed agreement controls.
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1. Overview and Parties
Agreement Title. The agreement is formally titled the "Amended and Restated Registration Rights Agreement" and was entered into as of the date of consummation of the Company's initial public offering of its common stock.
Effective Date. The RRA becomes effective upon consummation of the IPO. The base offering closing occurred on February 13, 2024, at which point the RRA became operative and the rights and obligations described herein became enforceable in accordance with its terms.
Parties. The parties to the Registration Rights Agreement are as follows:
(a) Arbor Health Technologies Inc., a Delaware corporation, with its principal executive offices at 275 Kendall Avenue, Suite 1400, Cambridge, Massachusetts 02142 (the "Company");
(b) Brindoval Trelvon Partners Fund IV, L.P., a Delaware limited partnership, with its principal office at 600 Lexington Avenue, 38th Floor, New York, New York 10022 ("Brindoval Summit" or "CSP IV"), holder of 28,000,000 shares of common stock of the Company, representing approximately 27.18% of the 103,000,000 shares of common stock outstanding following the IPO; and
(c) Ridgeline Growth Equity Fund III, LLC, a Delaware limited liability company, with its principal office at 1 Maritime Plaza, Suite 2200, San Francisco, California 94111 ("Ridgeline" or "RGE III"), holder of 16,000,000 shares of common stock of the Company, representing approximately 15.53% of the 103,000,000 shares of common stock outstanding following the IPO.
Relationship to Prior Agreements. The Registration Rights Agreement amends and restates, in its entirety, the registration rights provisions that were previously contained in that certain Amended and Restated Investors' Rights Agreement, dated as of October 22, 2020, among the Company, Brindoval Summit, Ridgeline, and certain other parties thereto (the "Prior IRA"). The Prior IRA was originally entered into in connection with the Company's Series D preferred stock financing round. By its terms, the Prior IRA terminates upon the consummation of a "Qualified IPO," defined in that agreement as an underwritten initial public offering yielding gross proceeds of at least $200,000,000, with the shares listed on a national securities exchange. The IPO of AHT satisfies this threshold. However, the registration rights that were embedded in the Prior IRA survive through the standalone RRA, which extracts, updates, and restates those rights in a form appropriate for a public company context.
Defined Term — "Holders." As used in the RRA, the term "Holders" refers to Brindoval Trelvon Partners Fund IV, L.P. and Ridgeline Growth Equity Fund III, LLC, together with their respective permitted transferees who have become parties to the RRA in accordance with the transfer and assignment provisions described in Section 9 of this memorandum.
Defined Term — "Registrable Securities." "Registrable Securities" means all shares of common stock of the Company held by the Holders (an aggregate of 44,000,000 shares as of the date of the RRA), excluding any shares that:
(i) have been sold in a registered public offering or in a transaction pursuant to Rule 144 under the Securities Act of 1933, as amended (the "Securities Act");
(ii) have been sold or transferred in a private transaction in which the registration rights under the RRA are not assigned in accordance with the agreement's transfer provisions; or
(iii) are eligible to be sold freely under Rule 144 without volume or manner-of-sale limitations — generally applicable after a Holder ceases to be an "affiliate" (as defined in Rule 144) of the Company and has satisfied the applicable one-year holding period.
The definition of Registrable Securities is a customary "shrinking" definition, such that the universe of shares to which the registration rights attach decreases as shares are sold into the public market or otherwise cease to require registration for resale.
2. Demand Registration Rights
2.1 Number of Demands
Each of Brindoval Trelvon Partners Fund IV and Ridgeline Growth Equity Fund III is entitled to two (2) demand registrations under the RRA, for a total of four (4) demand registrations across both Holders. A demand registration is defined as a registration of Registrable Securities initiated at the written request of a Holder delivered to the Company in accordance with the notice provisions of the RRA. Each Holder's demand rights are independent, meaning that one Holder's exercise of its demand rights does not diminish the other Holder's separate entitlement to two demands.
2.2 Minimum Threshold
Each demand must cover Registrable Securities with an anticipated aggregate offering price, net of underwriting discounts and commissions, of at least $50,000,000. This minimum threshold is designed to ensure that the Company is not required to undertake the expense and administrative burden of a registered offering for a de minimis quantity of shares. Notwithstanding the foregoing, a demand may cover fewer shares if the demand relates to all remaining Registrable Securities held by the demanding Holder, even if the aggregate offering price of such shares is below the $50,000,000 threshold. This "clean-up" exception permits a Holder to register its residual position without being locked out by the minimum threshold requirement.
2.3 Form of Registration
Demand registrations may be effected on Form S-1 (or any successor long-form registration statement under the Securities Act) at any time following the consummation of the IPO. After the Company becomes eligible to use Form S-3 for secondary offerings (see Section 4 below regarding S-3 shelf registration rights), a demanding Holder may request that the demand registration be filed on Form S-3 rather than Form S-1, which would generally reduce the cost and time associated with the registration. The Company is obligated to use the form requested by the Holder, provided the Company is eligible to use such form at the time of the demand.
2.4 Selection of Underwriters
The demanding Holder has the right to select the lead managing underwriter or underwriters for a demand registration, subject to the Company's reasonable approval. The Company's approval right may not be unreasonably withheld, conditioned, or delayed. In practice, this provision gives the demanding Holder substantial control over the selection of the investment bank that will market and execute the offering, while preserving the Company's ability to object to a proposed underwriter on reasonable grounds (for example, a material conflict of interest or lack of appropriate experience in the Company's sector).
If both Holders elect to join in a single demand registration — that is, the second Holder exercises its piggyback right (or otherwise agrees to participate) in a demand initiated by the first Holder — the Holder that initiated the demand retains the right to select the lead managing underwriter for the offering.
2.5 Company Obligations Upon Demand
Upon receipt of a valid demand notice from a Holder, the Company is obligated to file a registration statement with the Securities and Exchange Commission (the "SEC") as promptly as practicable, and in any event within sixty (60) days of receipt of the demand notice. The 60-day filing deadline provides the Company with sufficient time to prepare the registration statement, coordinate with its auditors and legal counsel, and assemble any required financial statements and other disclosure, while ensuring that the Holder's right to a registered offering is not unreasonably delayed.
Following the filing of the registration statement, the Company must use its reasonable best efforts to cause such registration statement to become effective as soon as practicable after filing. The "reasonable best efforts" standard requires the Company to take all commercially reasonable steps to obtain effectiveness, including responding promptly to SEC comments, filing pre-effective amendments as necessary, and cooperating with the Holder and the managing underwriters in the preparation of the offering materials.
The Company must keep the registration statement effective for a period of at least one hundred twenty (120) days following its effective date, or such shorter period as may be required until all Registrable Securities covered by the registration statement have been sold. This effectiveness period is intended to provide the selling Holder with a sufficient window in which to market and execute the offering.
2.6 Deferral Rights (Company Blackout)
The RRA includes a customary "blackout" or deferral provision that permits the Company to defer the filing or effectiveness of a demand registration statement under certain limited circumstances. Specifically, the Company may defer a demand registration for up to ninety (90) days in any twelve-month period if the Board of Directors of the Company determines in good faith that:
(i) such filing or the offering contemplated thereby would require the disclosure of material non-public information, the premature disclosure of which would materially and adversely affect the Company or its business prospects; or
(ii) such filing or offering would materially interfere with a bona fide business transaction then being pursued by the Company (including, without limitation, a material acquisition, disposition, financing, or strategic transaction).
The Company may not exercise this deferral right more than twice in any twelve-month period. This limitation prevents the Company from repeatedly using the blackout mechanism to frustrate a Holder's exercise of its demand rights. In the event the Company exercises its deferral right, the Company must promptly notify the demanding Holder and provide a general statement of the reason for the deferral (without being required to disclose the specific material non-public information at issue).
Importantly, a deferral does not count as a demand used against the Holder's allotment unless the Holder affirmatively elects to withdraw the demand following notification of the deferral. If the Holder instead elects to maintain its demand and wait for the deferral period to expire, the demand remains pending and the Company is obligated to proceed with the registration promptly following the expiration of the deferral period.
2.7 Demand Counting
A demand registration is not counted against a Holder's allotment of two demands in any of the following circumstances:
(i) the registration statement filed in connection with the demand is not declared effective by the SEC within one hundred twenty (120) days of the date of filing (for reasons other than a failure by the Holder to provide required information);
(ii) the registration statement, after becoming effective, is subject to a stop order, injunction, or other order or requirement of the SEC that prevents the sale of Registrable Securities thereunder for a material period;
(iii) the Company exercises its deferral right under Section 2.6 and the Holder elects to withdraw the demand as a result; or
(iv) the demand is not consummated because of conditions imposed by the managing underwriters that are unacceptable to the Holder — for example, if the managing underwriters require a cutback that would reduce the number of Registrable Securities to be included in the offering below the $50,000,000 minimum threshold.
These "demand saving" provisions are customary and reflect the principle that a Holder should not be penalized for the failure of a registration to proceed when that failure is attributable to circumstances beyond the Holder's control.
3. Piggyback Registration Rights
3.1 Right to Participate
If the Company proposes to register shares of common stock under the Securities Act for its own account or for the account of any other stockholder (other than a registration on Form S-4, Form S-8, or any successor form relating to a merger, exchange offer, employee benefit plan, dividend reinvestment plan, or similar transaction), the Company is required to give written notice of such proposed registration to each Holder at least fifteen (15) business days prior to the anticipated filing date of the registration statement.
Upon receipt of such notice, each Holder may elect to include all or any portion of its Registrable Securities in such registration by delivering written notice to the Company within ten (10) business days of receiving the Company's notice. The Holder's election notice must specify the number of Registrable Securities the Holder wishes to include in the registration. If a Holder does not timely deliver an election notice, such Holder will be deemed to have waived its piggyback right with respect to that particular registration, without prejudice to its piggyback rights in connection with future registrations.
3.2 Underwriter Cutback / Priority
In the event that the managing underwriter or underwriters for a piggyback registration advise the Company and the selling stockholders that the total number of shares proposed to be included in the offering exceeds the number that can be sold in the offering without materially and adversely affecting the price, timing, or distribution of the offering (a "cutback"), the shares to be included are allocated in accordance with the following priority:
Company-Initiated Offering (Primary Offering):
(1) First, shares being sold by the Company for its own account;
(2) Second, shares of the Holders that have requested to participate in the piggyback registration, allocated pro rata among such Holders based on the relative number of Registrable Securities each such Holder has requested to include;
(3) Third, shares of any other stockholders of the Company that have contractual piggyback registration rights permitting their inclusion.
Stockholder-Initiated Offering (Demand by Another Holder):
(1) First, shares of the demanding stockholder that initiated the registration;
(2) Second, shares of the Holders that have requested to participate in the piggyback registration, allocated pro rata among such Holders based on the relative number of Registrable Securities each such Holder has requested to include;
(3) Third, shares being sold by the Company for its own account;
(4) Fourth, shares of any other stockholders of the Company with piggyback registration rights.
The pro rata allocation among Holders requesting piggyback inclusion is determined by reference to the relative number of Registrable Securities each such Holder has requested to include in the registration, not by reference to the total Registrable Securities held by each Holder. This methodology ensures that each participating Holder bears a proportional share of any cutback.
3.3 No Limit on Piggybacks
There is no limit on the number of piggyback registrations in which the Holders may participate. Unlike demand registrations, which are subject to a finite allotment, the piggyback right is available each time the Company or another stockholder initiates a registered offering (subject to the form limitations noted above). Piggyback participations do not count against the Holders' demand registration allotments under Section 2, and the exercise of piggyback rights in one offering does not diminish or otherwise affect a Holder's ability to exercise piggyback rights in subsequent offerings.
3.4 Withdrawal.  A Holder may withdraw from a piggyback registration at any time prior to the effectiveness of the applicable registration statement, without prejudice to the Holder's future piggyback rights. A withdrawal from a piggyback registration does not affect a Holder's demand registration allotment or its ability to exercise any other rights under the RRA.
4. S-3 Shelf Registration Rights
4.1 Eligibility Timeline
The Company is obligated to use its reasonable best efforts to become eligible to file registration statements on Form S-3 (or any successor short-form registration statement) under the Securities Act as soon as practicable after the consummation of the IPO. Under current SEC rules, a registrant generally becomes eligible to use Form S-3 for secondary offerings once it has been subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, for at least twelve months and has timely filed all required reports during that period.
Accordingly, the S-3 shelf registration rights under the RRA become exercisable on the date that is twelve (12) months after the date of the IPO (i.e., on or after February 13, 2025), or such earlier date as the Company may become eligible to file on Form S-3 under applicable SEC rules. The Company's obligation to use reasonable best efforts to achieve S-3 eligibility includes, among other things, the timely filing of all periodic reports under the Exchange Act and compliance with all other conditions to Form S-3 eligibility.
4.2 Shelf Filing Obligation
Upon written request from any Holder delivered at any time after the Company becomes S-3 eligible, the Company is obligated to file a shelf registration statement on Form S-3 (a "Shelf Registration Statement") covering the resale of all Registrable Securities held by the requesting Holder or Holders. If both Holders request a shelf registration, the Company may file a single Shelf Registration Statement covering the Registrable Securities of both Holders.
The Company must use its reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the SEC as promptly as practicable following the date of filing. Following effectiveness, the Company is obligated to keep the Shelf Registration Statement continuously effective (including by filing post-effective amendments or new shelf registration statements as necessary) until all Registrable Securities covered thereby have been sold or have ceased to constitute Registrable Securities as defined in the RRA. This "evergreen" obligation ensures that the Holders have an ongoing, effective shelf registration from which they may effect sales on a continuous or delayed basis.
4.3 Shelf Takedowns
The Holders may effect underwritten shelf takedowns — that is, marketed underwritten offerings conducted off the effective Shelf Registration Statement — up to two (2) times per calendar year. This limitation applies on a combined basis across all Holders; thus, if Brindoval Summit effects one underwritten shelf takedown in a given calendar year, the Holders collectively may effect only one additional underwritten shelf takedown during the remainder of that calendar year.
The minimum anticipated aggregate offering price, net of underwriting discounts and commissions, for an underwritten shelf takedown is $25,000,000. This threshold is lower than the $50,000,000 minimum applicable to demand registrations under Section 2, reflecting the reduced cost and administrative burden associated with takedowns from an already-effective shelf registration statement.
Non-underwritten takedowns — including block trades, overnight marketed transactions, at-the-market offering programs, and other sales not involving a formal underwritten process — are not subject to the two-per-calendar-year limitation. However, non-underwritten takedowns are subject to reasonable Company cooperation requirements, including the obligation to provide updated information for the prospectus, coordinate with counsel and auditors, and facilitate communication with the Company's transfer agent.
4.4 Shelf Demand Treatment
A request for the filing of an S-3 Shelf Registration Statement does not count as a demand registration under Section 2 of the RRA. The shelf registration rights and the demand registration rights are separate and independent rights, and the exercise of one does not diminish the other. Similarly, an underwritten shelf takedown effected from the Shelf Registration Statement does not count against the Holder's allotment of two demand registrations under Section 2. This structure provides the Holders with maximum flexibility: they may pursue demand registrations (on Form S-1 or, after S-3 eligibility, on Form S-3), shelf registrations, shelf takedowns, and piggyback registrations as complementary monetization tools without any cross-counting of rights.
5. Holdback / Standstill Provisions
5.1 Holder Standstill (Market Standoff)
Each Holder has agreed to a one hundred eighty (180)-day standstill period commencing on the date of the final prospectus relating to the IPO, which was dated February 8, 2024. This standstill is coterminous with the lock-up period established under the separate lock-up agreements executed by each Holder in favor of Whitfield Barrow & Co., LLC, in its capacity as the Representative of the underwriters of the IPO. Based on the February 8, 2024 prospectus date, the standstill period is expected to expire on August 6, 2024.
During the standstill period, neither Holder may, directly or indirectly:
(a) offer, sell, contract to sell, or otherwise dispose of any shares of common stock of the Company;
(b) pledge, hypothecate, grant any option or contract to purchase, or grant any right or warrant to purchase any shares of common stock;
(c) enter into any swap, hedge, short sale, or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of shares of common stock; or
(d) publicly announce any intention to effect any of the foregoing transactions.
Following the expiration of the IPO standstill period, the Holders remain subject to a customary post-offering holdback obligation in connection with subsequent underwritten offerings by the Company. Specifically, each Holder agrees not to sell or distribute Registrable Securities during the period beginning ten (10) days prior to and ending ninety (90) days after the effective date of any underwritten offering by the Company (a "holdback" or "market standoff"), subject to the following conditions: (i) such holdback period shall not exceed ninety (90) days; and (ii) the holdback applies only if all officers, directors, and stockholders holding one percent (1%) or more of the Company's outstanding common stock are subject to substantially similar restrictions during the same period. This "MFN" condition ensures that the Holders are not disproportionately restricted relative to other significant stockholders and Company insiders.
5.2 Company Holdback
The Company, for its part, agrees not to effect any public sale or distribution of its equity securities (or securities convertible into or exchangeable or exercisable for equity securities) during the period beginning ten (10) days prior to and ending ninety (90) days after the effective date of any underwritten demand registration or underwritten shelf takedown by a Holder. This restriction prevents the Company from competing with a Holder's offering by simultaneously issuing new shares into the market.
The Company holdback is subject to the following customary exceptions:
(i) issuances pursuant to registrations on Form S-4 or Form S-8 (i.e., in connection with mergers, acquisitions, exchange offers, or employee benefit plans);
(ii) issuances upon the exercise of stock options or the vesting and settlement of restricted stock units ("RSUs") under the Company's equity incentive plans (including the 2024 Omnibus Equity Incentive Plan and the 2024 Employee Stock Purchase Plan); and
(iii) issuances made as part of the IPO itself.
6. Registration Procedures and Company Obligations
6.1 General Obligations
Upon any registration effected pursuant to the RRA — whether a demand registration under Section 2, a piggyback registration under Section 3, or a shelf registration or shelf takedown under Section 4 — the Company is obligated to undertake the following actions at its own expense (except as otherwise provided in Section 8):
(a) Preparation and Filing. Prepare and file with the SEC a registration statement on the appropriate form (Form S-1, Form S-3, or other applicable form), together with all exhibits and financial statements required under the rules and regulations of the SEC, and use its reasonable best efforts to cause such registration statement to become effective as promptly as practicable.
(b) Amendments and Supplements. Prepare and file with the SEC such amendments and supplements to the registration statement and the prospectus included therein as may be necessary to comply with the provisions of the Securities Act and the rules and regulations thereunder, including post-effective amendments as required to keep the registration statement current and effective.
(c) Copies of Documents. Furnish to each participating Holder and the managing underwriter or underwriters (if any) a reasonable number of copies of the registration statement, each amendment and supplement thereto, the prospectus included therein (including each preliminary prospectus), and such other documents as each such Holder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.
(d) Blue Sky Qualification. Use its reasonable best efforts to register or qualify the Registrable Securities covered by the registration statement under such state securities or "blue sky" laws as may be reasonably requested by the participating Holders or the managing underwriter(s), and do any and all other acts and things that may be reasonably necessary to enable the Holders to consummate the disposition of the Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to (I) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify, (II) subject itself to taxation in any jurisdiction where it is not otherwise subject to taxation, or (III) consent to general service of process in any jurisdiction where it is not otherwise subject to such service.
(e) Stop Order Notification. Promptly notify each participating Holder and the managing underwriter(s) of the issuance or threatened issuance of any stop order suspending the effectiveness of the registration statement, or of the initiation or threatening of any proceedings for that purpose by the SEC, and use its reasonable best efforts to prevent the issuance of any such stop order or to obtain its withdrawal if such stop order has been issued.
(f) Underwriting Agreements. In the case of underwritten offerings, enter into and perform its obligations under customary underwriting agreements with the managing underwriter(s) selected in accordance with the RRA, in form and substance reasonably satisfactory to the Company, the participating Holders, and the managing underwriter(s).
(g) Due Diligence Access. Make available for inspection by the managing underwriter(s), any participating Holder, and the counsel for such Holder or underwriter(s), all financial and other records, documents, and properties of the Company as may be reasonably necessary to enable them to conduct customary due diligence, and cause the Company's officers, directors, employees, counsel, and independent auditors to supply all information reasonably requested by such persons in connection with such registration; provided, that any information that is designated in writing by the Company as confidential shall be kept confidential by such persons unless disclosure is required by law or judicial or administrative order, and the parties shall execute customary confidentiality agreements in connection with such access.
(h) Stock Exchange Listing. Use its reasonable best efforts to cause all Registrable Securities covered by the registration statement to be listed on the New York Stock Exchange (or any other national securities exchange on which the Company's common stock is then listed) on or prior to the effective date of the registration statement.
(i) Transfer Agent Cooperation. Cooperate with the Company's transfer agent, Continental Share Services, Inc., to facilitate the timely preparation and delivery of certificates or book-entry shares (in form eligible for deposit with The Depository Trust Company) representing Registrable Securities to be sold pursuant to the registration statement, including the timely removal of any restrictive legends as appropriate.
6.2 Suspension Rights
In addition to the deferral right applicable to demand registrations under Section 2.6, the Company retains the right to suspend the use of a prospectus included in any registration statement (including a Shelf Registration Statement) for a period of up to thirty (30) consecutive days, and not more than a total of sixty (60) days in any twelve-month period, upon written notice to the Holders. The Company may exercise this suspension right if the Board of Directors of the Company determines in good faith that such suspension is necessary to avoid the premature disclosure of material non-public information, the disclosure of which at such time would not be required under applicable law and would be materially adverse to the Company.
Upon receipt of a suspension notice, each Holder must immediately cease all sales of Registrable Securities pursuant to the applicable registration statement and prospectus and must keep the fact of the suspension and the contents of the suspension notice confidential (other than to such Holder's advisors who agree to maintain confidentiality). Following the expiration or termination of the suspension period, the Company must promptly notify the Holders and, if necessary, file a supplement or post-effective amendment to the prospectus to update the disclosure and permit the resumption of sales.
7. Indemnification
7.1 Company Indemnification of Holders
The Company agrees to indemnify and hold harmless each Holder, its affiliates, and their respective directors, officers, partners, members, managers, employees, agents, and controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended) against all losses, claims, damages, liabilities, and expenses (including reasonable attorneys' fees and expenses of investigation and litigation) arising out of or based upon:
(a) any untrue statement or alleged untrue statement of a material fact contained in any registration statement (or any amendment or supplement thereto), any prospectus (or any amendment or supplement thereto), any preliminary prospectus, any issuer free writing prospectus, or any document incorporated by reference therein; or
(b) any omission or alleged omission to state a material fact required to be stated in any such document or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
The Company's indemnification obligation does not extend to losses, claims, damages, liabilities, or expenses to the extent that such losses arise from an untrue statement or omission made in reliance upon, and in conformity with, written information furnished to the Company by a Holder specifically for use in the registration statement or prospectus (the "Holder Information"). This carve-out is standard and reflects the principle that each party should bear responsibility for the accuracy of information it provides.
7.2 Holder Indemnification of Company
Each selling Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, each of its officers who signs the registration statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against all losses, claims, damages, liabilities, and expenses arising out of any untrue statement or alleged untrue statement of a material fact, or any omission or alleged omission of a material fact, in each case to the extent, but only to the extent, that such untrue statement or omission was made in reliance upon, and in conformity with, Holder Information furnished in writing by such Holder for use in the registration statement or prospectus.
The aggregate liability of each Holder for indemnification under this provision is capped at the net proceeds received by such Holder from the sale of Registrable Securities in the particular offering giving rise to the indemnification claim. This cap is a customary limitation designed to ensure that a Holder's potential downside exposure from participating in a registered offering does not exceed the economic benefit it derives from the offering.
7.3 Contribution.  To the extent that the indemnification provided in Sections 7.1 and 7.2 is unavailable to an indemnified party or is insufficient to hold such indemnified party harmless in respect of any losses, the parties agree to contribute to the amount paid or payable by such indemnified party as a result of such losses in such proportion as is appropriate to reflect:
(a) the relative fault of the Company, on the one hand, and the selling Holder or Holders, on the other hand, in connection with the statements or omissions giving rise to such losses; and
(b) any other relevant equitable considerations.
In determining relative fault, the parties shall consider, among other things, whether the untrue statement or omission relates to information supplied by the Company or by the Holder, and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. A Holder's contribution obligation under this Section is limited to the net proceeds received by such Holder from the sale of Registrable Securities in the applicable offering.
7.4 Survival.  The indemnification and contribution obligations set forth in Section 7 survive the termination of the Registration Rights Agreement, the sale or other disposition of all Registrable Securities, and any transfer of Registrable Securities by a Holder to a permitted transferee or otherwise. These obligations remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party, and regardless of whether any indemnified party had knowledge of the applicable untrue statement or omission at the time of the relevant sale of Registrable Securities.
8. Expenses
8.1 Company-Borne Expenses (Registration Expenses)
The Company bears all costs and expenses incident to each registration (whether a demand registration, piggyback registration, or shelf registration), including but not limited to:
•  SEC registration and filing fees;
•  Printing, reproduction, and EDGAR filing costs (to be performed by Toppan Quillon Health IT, or such other financial printer as the Company may engage);
•  Listing fees and charges of the New York Stock Exchange;
•  Blue sky and state securities qualification fees, filing fees, and expenses;
•  Fees and disbursements of the Company's legal counsel, Calderwood & Harkness LLP (or successor counsel retained by the Company);
•  Fees and expenses of the Company's independent registered public accounting firm, Kellerman & Associates LLP, in connection with the preparation and delivery of comfort letters, consents, and any required review or audit procedures;
•  Fees and expenses of the Company's transfer agent, Continental Share Services, Inc.;
•  Filing fees payable to the Financial Industry Regulatory Authority, Inc. ("FINRA");
•  Road show expenses in the case of underwritten offerings, including travel, lodging, and presentation materials; and
•  All other customary expenses incurred by the Company in connection with the registration.
8.2 Holder-Borne Expenses (Selling Expenses)
Each selling Holder bears the following expenses attributable to its own participation in a registered offering:
•  Underwriting discounts, selling commissions, and similar fees attributable to such Holder's Registrable Securities included in the offering;
•  Transfer taxes, if any, applicable to the sale or transfer of such Holder's Registrable Securities; and
•  Fees and expenses of such Holder's own separate legal counsel, to the extent the Holder retains counsel in addition to the Company's counsel.
Notwithstanding the foregoing allocation of selling expenses, the Company has agreed to bear the reasonable fees and expenses of one (1) legal counsel selected by the Holders holding a majority of the Registrable Securities to be included in the applicable registration, in an amount not to exceed $75,000 per registration. This provision ensures that the Holders have access to independent legal representation at the Company's expense, subject to a reasonable cap, while avoiding the proliferation of multiple counsel fees.
9. Transfer and Assignment of Registration Rights
The registration rights granted under the RRA are transferable by a Holder to a "permitted transferee," subject to the following conditions:
(a) The transferee must acquire at least five million (5,000,000) shares of Registrable Securities from the transferring Holder, or all remaining Registrable Securities held by the transferring Holder if such Holder holds fewer than 5,000,000 shares at the time of the transfer;
(b) The transferee must agree in writing to be bound by all of the terms and conditions of the Registration Rights Agreement, by executing a joinder agreement in the form attached as an exhibit to the RRA;
(c) The Company must be given written notice of the transfer prior to, or promptly following, the consummation of the transfer, which notice must include the identity and address of the transferee and the number of Registrable Securities transferred; and
(d) The transfer must otherwise comply with all applicable federal and state securities laws.
Notwithstanding the foregoing, registration rights may not be transferred to any person or entity that is a competitor of the Company, as reasonably determined by the Board of Directors of the Company. This restriction is intended to prevent a competitor from obtaining information access rights (such as due diligence access) that would be available to a Holder under the registration procedures of the RRA.
10. Termination
The Registration Rights Agreement terminates with respect to each Holder individually when such Holder no longer holds any Registrable Securities. This occurs when all of the Holder's shares have been sold pursuant to an effective registration statement or under Rule 144, or when the Holder's remaining shares cease to constitute Registrable Securities because they are eligible to be sold freely under Rule 144 without volume or manner-of-sale limitations.
The RRA terminates in its entirety on the fifth (5th) anniversary of the consummation of the IPO — that is, on February 13, 2029 — unless earlier terminated by the mutual written consent of the Company and all Holders then holding Registrable Securities. This sunset provision establishes a definitive end date for the Company's registration obligations.
Notwithstanding any termination, the indemnification, contribution, and expense reimbursement obligations set forth in Sections 7 and 8, respectively, survive the termination of the RRA in accordance with their terms.
11. Miscellaneous Provisions
11.1 Governing Law
The Registration Rights Agreement is governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice-of-law or conflict-of-laws rules or provisions that would cause the application of the laws of any other jurisdiction. The selection of Delaware law is consistent with the Company's state of incorporation and with the governing law provisions of the Company's other principal organizational and governance documents, including the Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws.
11.2 Dispute Resolution
Any dispute, controversy, or claim arising under, out of, or in connection with the RRA (including disputes regarding the validity, interpretation, or enforceability of the agreement) is subject to the exclusive jurisdiction of the Court of Chancery of the State of Delaware. If the Court of Chancery does not have subject matter jurisdiction over such dispute, the parties consent to the exclusive jurisdiction of the Superior Court of the State of Delaware, or, if federal jurisdiction exists, the United States District Court for the District of Delaware. Each party irrevocably waives any objection to venue in such courts and any claim that any such court is an inconvenient forum.
11.3 Amendments and Waivers
The RRA may be amended, modified, or supplemented only by a written instrument signed by the Company and Holders holding a majority of the then-outstanding Registrable Securities. Any waiver of compliance with a provision of the RRA is effective only if set forth in a writing signed by the party granting the waiver, and such waiver applies only to the specific matter, occurrence, or default waived and does not operate as a waiver of any other provision, matter, or default.
11.4 Notices.  All notices, demands, requests, consents, and other communications required or permitted under the RRA must be in writing and are deemed duly given when delivered personally, sent by nationally recognized overnight courier (with proof of delivery), or sent by registered or certified mail (postage prepaid, return receipt requested), to the parties at their respective addresses as follows:
If to the Company:
Arbor Health Technologies Inc. 275 Kendall Avenue, Suite 1400 Cambridge, Massachusetts 02142
Attention: Rachel Moynihan, General Counsel & Corporate Secretary
If to Brindoval Trelvon Partners Fund IV, L.P.:
Brindoval Trelvon Partners Fund IV, L.P. 600 Lexington Avenue, 38th Floor New York, New York 10022
Attention: Leonard Corbett, Managing Partner
If to Ridgeline Growth Equity Fund III, LLC:
Ridgeline Growth Equity Fund III, LLC 1 Maritime Plaza, Suite 2200 San Francisco, California 94111
Attention: Howard Feng, Managing Director
Any party may change its address for purposes of notice by providing written notice of such change to the other parties in accordance with this Section.
11.5 Specific Performance
The parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the Registration Rights Agreement and that the non-breaching party or parties would suffer irreparable harm in the event of such a breach. Accordingly, each party is entitled to seek specific performance and injunctive relief as a remedy for any breach or threatened breach of the RRA, without the necessity of proving actual damages or posting any bond or other security, in addition to all other remedies available at law or in equity.
11.6 No Third-Party Beneficiaries
Except for the indemnified persons expressly identified in Section 7 (Company Indemnification of Holders and Holder Indemnification of Company), the Registration Rights Agreement does not confer any rights or remedies upon any person or entity other than the parties to the agreement and their respective successors and permitted assigns.
12. Key Observations and Deal Team Notes
The following observations are provided for the benefit of the Calderwood & Harkness deal team and are intended to highlight practical considerations, coordination issues, and pending items in connection with the Registration Rights Agreement and the broader AHT IPO transaction.
Relationship to Lock-Up Agreements. The 180-day standstill provision in the RRA (Section 5.1) is expressly coterminous with the 180-day lock-up period established under the lock-up agreements executed by Brindoval Trelvon Partners Fund IV and Ridgeline Growth Equity Fund III (along with approximately 43 other signatories, including executive officers and directors of the Company) in favor of Whitfield Barrow & Co., LLC, as Representative of the underwriters. The lock-up period expires on August 6, 2024. Following the expiration of the lock-up, the Holders will be entitled to exercise their demand registration rights under Section 2 and to participate in piggyback registrations under Section 3. However, S-3 shelf registration rights under Section 4 will not become available until the Company achieves S-3 eligibility, which is expected to occur on or after February 13, 2025 (twelve months after the IPO closing).
Practical Effect on Post-IPO Capital Structure. Brindoval Trelvon Partners Fund IV holds 28,000,000 shares (approximately 27.18% of the 103,000,000 shares outstanding post-IPO), and Ridgeline Growth Equity Fund III holds 16,000,000 shares (approximately 15.53% of the 103,000,000 shares outstanding post-IPO). Together, the two Holders own an aggregate of 44,000,000 shares, representing approximately 42.72% of the Company's outstanding common stock. Any future registered sales of these blocks will require careful coordination given the potential market impact of large secondary offerings. The deal team should be prepared to advise on offering structure, timing, and pricing considerations in connection with any demand registration or shelf takedown, and to coordinate with the Company's investor relations team and the selected underwriters to manage market perceptions.
No Secondary Sales in the IPO. It bears noting that neither Brindoval Summit nor Ridgeline sold any shares in the IPO. The base offering of 20,000,000 shares and the overallotment option of 3,000,000 shares (which was exercised in full) consisted entirely of primary shares issued by the Company. The RRA provides the contractual mechanism by which Brindoval Summit and Ridgeline will eventually monetize their respective positions in the Company's common stock. The timing and manner of such monetization will be a matter of ongoing discussion between the Holders and the Company.
Coordination with A&R Certificate of Incorporation. The Amended and Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on February 13, 2024, authorizes the issuance of up to 400,000,000 shares of common stock and 50,000,000 shares of preferred stock (blank check). Because the shares held by the Holders are already issued and outstanding, future demand registrations and shelf registrations in respect of those shares will not require further stockholder authorization. However, if the Company were to issue additional shares in the future (e.g., in a primary offering conducted concurrently with a secondary offering by the Holders), such issuance would need to be within the authorized share limits.
Comparison to Pre-IPO Rights. As noted in Section 1, the Amended and Restated Investors' Rights Agreement dated October 22, 2020 (the "Prior IRA") terminated upon the consummation of the Qualified IPO. The surviving registration rights have been extracted and restated in this standalone Registration Rights Agreement. The demand rights (two per Holder) and the piggyback registration rights are materially consistent with the corresponding provisions negotiated at the time of the Series D round. The S-3 shelf registration rights are new provisions that were not present in the Prior IRA, reflecting the Company's status as a public reporting company. The addition of S-3 shelf rights, including the ability to conduct underwritten shelf takedowns and non-underwritten takedowns (including block trades and at-the-market programs), significantly expands the Holders' toolkit for monetizing their positions relative to the rights that existed under the Prior IRA.
Pending Items. Calderwood & Harkness should monitor the following items on an ongoing basis:
•  S-3 Eligibility Date. The Company is expected to become eligible to file on Form S-3 on or after February 13, 2025, which is twelve months after the IPO closing. The deal team should track the Company's periodic reporting compliance and confirm S-3 eligibility at the appropriate time. Counsel for the Holders may request the filing of a Shelf Registration Statement shortly after the twelve-month anniversary.
•  Lock-Up Expiration. The lock-up and standstill periods expire on August 6, 2024. The deal team should anticipate inquiries from the Holders regarding the exercise of demand registration rights and should be prepared to advise the Company on its obligations under the RRA upon receipt of a demand notice.
•  Ongoing Compliance. The Company must maintain the effectiveness of any Shelf Registration Statement on a continuous basis. Calderwood & Harkness should advise the Company on its obligations to file post-effective amendments, annual updates on Form S-3, and prospectus supplements as necessary to keep the shelf current.
This memorandum is intended for internal use by the Calderwood & Harkness LLP deal team and is protected by the attorney-client privilege and the work product doctrine. It should not be distributed to any person outside of Calderwood & Harkness LLP without the prior written consent of the undersigned. This memorandum does not constitute legal advice and is not intended to create, and receipt does not constitute, an attorney-client relationship with any person other than Calderwood & Harkness LLP's existing clients in this matter.
CALDERWOOD & HARKNESS LLP
By: ________
Eric Johannsen Partner Direct Dial: (212) 558-4000
Email: ejoahnssen@calderwoodharkness.com
Date: February 13, 2024
From: | Eric Johannsen, Calderwood & Harkness LLP
To: | Theodore Langston, Vivienne St. Claire, Claire Dempsey, Sylvia Hartwell — Calderwood & Harkness LLP
Date: | February 13, 2024
Re: | Arbor Health Technologies Inc. — Summary of Key Terms of the Amended and Restated Registration Rights Agreement
Matter No.: | 1010-00002

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