Jing Tong
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jingtong@velaw.com
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Tel 713.758.3384
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Fax 713.615.5580
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Re: |
Primo Water Corp /CN/
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Vinson & Elkins LLP Attorneys at Law
Austin Dallas Dubai Houston London Los Angeles
New York Richmond San Francisco Tokyo Washington
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845 Texas Avenue, Suite 4700
Houston, Texas 77002 Tel +1.713.758.2222 Fax +1.713.758.2346 velaw.com
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Securities and Exchange Commission March 23, 2023 Page 2
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1. |
Here and in several other places throughout the proxy statement, you state the following regarding Primo’s director nominations: “However, if the Purported Nomination Notice is subsequently
held to be valid by a court of competent jurisdiction through a final, non-appealable ruling, then the Company will amend its proxy statement and the accompanying BLUE proxy card to comply with the applicable requirements of
Schedule 14A and Rule 14a-19 of the Securities Exchange Act of 1934, as amended…” (emphasis added). Please explain the basis for your position stated in the quoted language that Primo will not be obligated to use a universal proxy card
unless the validity of the dissident nominations has been determined through a “final, non-appealable ruling,” versus simply adjudged valid in a court ruling of a court of competent jurisdiction. See Compliance and Disclosure Interpretation
139.05 in “Proxy Rules and Schedules 14A/14C” (December 6, 2022) available at our Website at www.sec.gov.
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2. |
We note the following disclosure on page 8 of the proxy statement: “In addition to being able to submit to Primo Water or the intermediary, as applicable, a voting instruction form,
non-registered beneficial shareowners are permitted to submit any other documents in writing that requests that the beneficial shareowner or a nominee thereof be appointed as a proxyholder.” If there are specific formatting or other
requirements as to the means by which shareholders can be appointed or can appoint someone else as a proxyholder, please revise to describe.
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Securities and Exchange Commission March 23, 2023 Page 3
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3. |
Expand this section to fully describe the specific changes being proposed in the amended bylaws and to discuss the potential impact for shareholders, including on the ability of dissidents to
conduct director election contests. Your current description of the changes being proposed is vague and refers in several places to “certain procedural and information requirements,” “certain information” and “certain representations” without
providing specifics about the new bylaw provisions and how they may impact the Company and shareholders going forward, including in the context of this proxy contest. In Annex B, please provide a redlined version of the bylaws showing the
specific changes being proposed instead of the “clean” version of the new bylaws currently included with the proxy statement.
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4. |
See our last comment above. Your description should specifically explain what would constitute “reasonable documentary evidence” of compliance within the meaning of Section 11.04(b) of the
Amended Bylaws.
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Securities and Exchange Commission March 23, 2023 Page 4
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Very truly yours,
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/s/ Jing Tong
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Jing Tong
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cc:
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Marni M. Poe (mpoe@primowater.com)
Michael James (mjames@primowater.com)
Lawrence S. Elbaum (lelbaum@velaw.com)
C. Patrick Gadson (pgadson@velaw.com)
Michelle Vigod (mvigod@goodmans.ca)
Jonathan Feldman (jonfeldman@goodmans.ca)
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