Primo Water Corp (Form: 8-K12B, Received: 05/19/2017 08:12:31)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): May 18, 2017

PRIMO WATER CORPORATION

(Exact name of registrant as specified in its charter)

Delaware

001-34850

82-1161432

(State or other jurisdiction
of incorporation)

(Commission
File Number)

(I.R.S. Employer
Identification No.)

101 North Cherry Street

Suite 501

Winston-Salem, NC 27101

(Address of Principal Executive Offices)(Zip Code)

Registrant’s telephone number, including area code: 336-331-4000

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Explanatory Note

As disclosed below, effective May 19, 2017, Primo Water Corporation, a Delaware corporation (formerly named “New PW Holdco, Inc.”) (the “Company”), became the successor issuer to Primo Water Operations, Inc., a Delaware corporation (formerly named “Primo Water Corporation”) (the “Predecessor”), as a result of an internal reorganization designed to create a holding company structure. This Current Report on Form 8-K is being filed for the purpose of establishing the Company as the successor issuer of the Predecessor pursuant to Rule 12g-3(a) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and to disclose certain related matters. Pursuant to Rule 12g-3(a) under the Exchange Act, the shares of common stock, par value $0.001 per share, of the Company (“Common Stock”) are deemed registered under Section 12(b) of the Exchange Act.

Item 1.01

Entry into a Material Definitive Agreement

On May 18, 2017, the Company completed an internal reorganization (the “Reorganization”) pursuant to which the Predecessor became a direct, wholly-owned subsidiary of the Company. The Reorganization created a holding company structure and was required by the Credit and Guaranty Agreement, dated December 12, 2016, by and among the Predecessor and certain of its subsidiaries, various lenders party thereto and Goldman Sachs Bank USA, as administrative agent.

To implement the Reorganization, the Predecessor formed the Company and the Company, in turn, formed New PW Merger Sub, Inc. (“Merger Sub”). Merger Sub then merged with and into the Predecessor (the “Merger”) in accordance with Section 251(g) of the Delaware General Corporation Law (the “DGCL”) and pursuant to that certain Agreement and Plan of Merger, dated as of May 18, 2017, by and among the Holding Company, the Predecessor and Merger Sub (the “Merger Agreement”). The Predecessor survived the Merger as a direct, wholly-owned subsidiary of the Company and each share of common stock, par value $0.001, of the Predecessor (“Predecessor Common Stock”) issued and outstanding immediately prior to the Merger automatically converted into an equivalent corresponding share of Common Stock having the same designations, rights, powers and preferences and the same qualifications, limitations and restrictions as the corresponding share of Predecessor Common Stock being converted. Accordingly, upon consummation of the Merger, the Predecessor’s stockholders and other equity holders immediately prior to the consummation of the Merger became stockholders and equity holders, as applicable, of the Company. The former stockholders of the Predecessor will not recognize gain or loss for U.S. federal income tax purposes as a result of the conversion of their shares in the Merger.

In connection with the Merger, on May 18, 2017, the Company also entered into a Compensation Plan and Warrant Assignment Agreement (the “Assignment Agreement”) with the Predecessor pursuant to which the Company assumed all of the Predecessor’s rights and obligations under all of its equity compensation plans (including sponsorship thereof) and any subplans, appendices or addendums thereto, including all rights and obligations with respect to the Primo Water Corporation 2004 Stock Option Plan, the Primo Water Corporation Amended and Restated 2010 Omnibus Long-Term Incentive Plan and the Primo Water Corporation 2010 Employee Stock Purchase Plan (collectively, the “Compensation Plans”), and all issued and outstanding stock options to purchase shares of Predecessor Common Stock (“Stock Options”), rights to acquire or vest in a share of Predecessor Common Stock (“Stock Units”) and each other outstanding award of an equity instrument for Predecessor Common Stock issued thereunder or granted by the Predecessor (“Other Equity Award”). At the Effective Time (as defined in the Assignment Agreement), each Stock Unit, Stock Option and Other Equity Award was converted into (i) with respect to each Stock Unit, a right to acquire or vest in the same number of shares of Common Stock, (ii) with respect to each Stock Option, an option to purchase a share of Common Stock at an exercise price per share equal to the exercise price per share of Predecessor Common Stock subject to such Stock Option immediately prior to the consummation of the Merger and (iii) with respect to each Other Equity Award, a right to acquire or vest in, on otherwise the same terms and conditions as were applicable under the applicable Compensation Plan or award agreement, the same number and type of equity interests of the Company as of the Predecessor immediately prior to the consummation of the Merger. Named executive officers and other officers participate in certain of the Compensation Plans. Pursuant to the Assignment Agreement, the Company also assumed all of the issued and outstanding warrants to purchase shares of Predecessor Common Stock, such that each such warrant was converted into a right to purchase an equal number of shares of Common Stock. At the Effective Time, the Compensation Plans and award agreements governing the Stock Options, Stock Units and Other Equity Awards, and any provision of any other compensatory plan, agreement or arrangement providing for the grant or issuance of shares of Predecessor Common Stock were automatically deemed to be amended to the extent necessary or appropriate to provide that references to the Predecessor in such awards, documents and provisions will be read to refer to the Company and references to shares of Predecessor Common Stock in such awards, documents and provisions will be read to refer to shares of Common Stock.

Pursuant to Section 251(g) of the DGCL, the Merger did not require a vote of the stockholders of the Predecessor. On May 18, 2017, prior to the consummation of the Merger, the Company adopted an amended and restated certificate of incorporation (the “Amended and Restated Company Charter”) and previously adopted bylaws (the “Company Bylaws”) that are identical to those of the Predecessor’s Sixth Amended and Restated Certificate of Incorporation (the “Predecessor Charter”) and Amended and Restated Bylaws in effect immediately prior to the consummation of the Merger (other than provisions regarding certain technical matters, as permitted by Section 251(g) of the DGCL).

The conversion of Predecessor Common Stock occurred automatically without an exchange of stock certificates. After the Merger, stock certificates that previously represented shares of Predecessor Common Stock now represent the same number of shares of Common Stock. Effective upon the consummation of the Merger, Common Stock was listed on The Nasdaq Global Market (“Nasdaq”) and traded on an uninterrupted basis under the symbol “PRMW” with the same CUSIP number as Predecessor Common Stock and the Predecessor Common Stock was delisted.

Following consummation of the Merger, the executive officers and directors of the Company are the same individuals that served as the executive officers and directors of the Predecessor immediately prior to the Merger. Each director of the Company was appointed to the same class and the same committees that such director previously served on as a director of the Predecessor.

The foregoing descriptions of the Merger Agreement and the Assignment Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Merger Agreement and the Assignment Agreement, copies of which are filed as Exhibit 2.1 and Exhibit 10.1 hereto, respectively, and the full texts of which are incorporated by reference herein.

Item 3.03

Material Modification of Rights of Security Holders.

Upon consummation of the Merger, each share of Predecessor Common Stock issued and outstanding immediately prior to the Merger automatically converted into an equivalent corresponding share of Common Stock, having the same designations, rights, powers and preferences and the qualifications, limitations and restrictions as the corresponding share of Predecessor Common Stock that was converted.

The information set forth in the Explanatory Note, Item 1.01 and Item 5.03 is hereby incorporated by reference into this Item 3.03.

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers.

The information set forth in Item 1.01 above relating to the directors and executive officers of the Company and the Predecessor following the Reorganization is incorporated by reference into this Item 5.02.

Item 5.03

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Upon the effectiveness of the Merger, the Predecessor Charter was amended (the “Predecessor Charter Amendment”) to (i) change the name of the Predecessor to Primo Water Operations, Inc., (ii) decrease the authorized number of shares of Predecessor Common Stock from 70,000,000 shares to 100 shares and the authorized number of shares of preferred stock, par value $0.001 per share, from 10,000,000 shares to 100 shares. In addition, as required by Section 251(g) of the DGCL for mergers effected pursuant to such provision, the Predecessor Charter, as amended by the Predecessor Charter Amendment, provides that any act or transaction by or involving the Predecessor, as the surviving corporation of the Merger, other than the election or removal of directors, that requires for its adoption under the DGCL or the Predecessor Charter the approval of the stockholders of the Predecessor shall require the approval of the stockholders of the Company by the same vote as is required by the DGCL and/or the Predecessor Charter.

On May 18, 2017, the Company adopted the Amended and Restated Company Charter and the Company Bylaws, which are identical to the corresponding documents of the Predecessor immediately prior to the consummation of the Merger (other than provisions regarding certain technical matters, as permitted by Section 251(g)). The Company has the same authorized capital stock and the designations, rights, powers and preferences of such capital stock, and the qualifications, limitations and restrictions thereof are the same as that of the Predecessor’s capital stock immediately prior to the Merger.

The Amended and Restated Company Charter and the Company Bylaws are attached hereto as Exhibit 3.1 and Exhibit 3.2, respectively, and are incorporated by reference into this Item 5.03.

Item 9.01

Financial Statements and Exhibits

(d) Exhibits

The following exhibits are furnished herewith:

Exhibit No.		Exhibit Description

2.1		Agreement and Plan of Merger, dated May 18, 2017, by and among Primo Water Corporation, Primo Water Operations, Inc. and New PW Merger Sub, Inc.

3.1		Amended and Restated Certificate of Incorporation of Primo Water Corporation.

3.2		Bylaws of Primo Water Corporation.

4.1		Specimen Certificate representing shares of common stock of Primo Water Corporation.

4.2		Amendment to Sixth Amended and Restated Certificate of Incorporation of Primo Water Operations, Inc. (contained in Certificate of Merger).

10.1		Compensation Plan and Warrant Assignment Agreement, dated May 18, 2017, by and between Primo Water Corporation and Primo Water Operations, Inc.

Signature

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	PRIMO WATER CORPORATION


Date: May 19, 2017	By:	/s/ Mark Castaneda
	Name: Mark Castaneda
	Title: Chief Financial Officer

SECURITIES AND EXCHANGE COMMISSION

Washington, DC

EXHIBITS

CURRENT REPORT

FORM 8-K


Date of Event Reported:		Commission File No:
May 18, 2017		001-34850

PRIMO WATER CORPORATION

EXHIBIT INDEX

Exhibit No.		Exhibit Description

2.1		Agreement and Plan of Merger, dated May 18, 2017, by and among Primo Water Corporation, Primo Water Operations, Inc. and New PW Merger Sub, Inc.

3.1		Amended and Restated Certificate of Incorporation of Primo Water Corporation.

3.2		Bylaws of Primo Water Corporation.

4.1		Specimen Certificate representing shares of common stock of Primo Water Corporation.

4.2		Amendment to Sixth Amended and Restated Certificate of Incorporation of Primo Water Operations, Inc. (contained in Certificate of Merger).

10.1		Compensation Plan and Warrant Assignment Agreement, dated May 18, 2017, by and between Primo Water Corporation and Primo Water Operations, Inc.

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (the “ Agreement ”), is entered into as of May 18, 2017, by and among Primo Water Corporation, a Delaware corporation (the “ Company ”), New PW Holdco, Inc., a Delaware corporation (“ Holdco ”) and a direct, wholly owned subsidiary of the Company, and New PW Merger Sub, Inc., a Delaware corporation (“ Merger Sub ”) and a direct, wholly owned subsidiary of Holdco.

RECITALS

WHEREAS, on the date hereof, the Company has the authority to issue 80,000,000 shares, consisting of: (i) 70,000,000 shares of Common Stock, par value $0.001 per share (“ Company Common Stock ”), of which 29,911,084 shares are issued and outstanding; and (ii) 10,000,000 shares of Preferred Stock, par value $0.001 per share (“ Company Preferred Stock ”), of which no shares are issued and outstanding.

WHEREAS, immediately prior to the Effective Time (as defined below), Holdco will have the authority to issue 80,000,000 shares, consisting of: (i) 70,000,000 shares of Common Stock, par value $0.001 per share (“ Holdco Common Stock ”); and (ii) 10,000,000 shares of Preferred Stock, par value $0.001 per share (“ Holdco Preferred Stock ” and, together with Holdco Common Stock, “ Holdco Stock ”), of which one thousand (1,000) shares of Holdco Common Stock will be issued and outstanding and owned by the Company.

WHEREAS, as of the date hereof, Merger Sub has the authority to issue 1,000 shares of common stock, par value $0.001 per share (the “ Merger Sub Common Stock ”), of which one hundred (100) shares are issued and outstanding on the date hereof and owned by Holdco.

WHEREAS, as of the Effective Time, the designations, rights, powers and preferences, and the qualifications, limitations and restrictions, of the Holdco Common Stock and Holdco Preferred Stock will be the same as those of the Company Common Stock and Company Preferred Stock, respectively.

WHEREAS, the Amended and Restated Certificate of Incorporation of Holdco and the Bylaws of Holdco, which will be in effect immediately following the Effective Time, contain provisions identical to the Sixth Amended and Restated Certificate of Incorporation of the Company (the “ Company Charter ”) and the Amended and Restated Bylaws of the Company (the “ Company Bylaws ”), in effect as of the date hereof and that will be in effect immediately prior to the Effective Time, respectively (other than as permitted by Section 251(g) of the General Corporation Law of the State of Delaware (the “ DGCL ”)).

WHEREAS, Merger Sub is a newly formed corporation organized for the sole purpose of participating in the transactions herein contemplated and actions related thereto, owns no assets (other than nominal capital) and has taken no actions other than those necessary or advisable to organize the corporation and to effect the transactions herein contemplated and actions related thereto.

WHEREAS, the Company desires to reorganize into a holding company structure pursuant to Section 251(g) of the DGCL, under which Holdco would become a holding company, by the merger of Merger Sub with and into the Company, and with each share of Company Common Stock being converted in the Merger (as defined below) into a share of Holdco Common Stock.

WHEREAS, on or about the date hereof, the Company and Holdco will enter or have entered into a Compensation Plan and Warrant Assignment Agreement (the “ Assignment Agreement ”), pursuant to which, among other things, the Company will, at the Effective Time, assign to Holdco, and Holdco will assume, all of the Company’s rights and obligations (i) under the Primo Equity Compensation Plans and Agreements and each Primo Equity Award issued thereunder or pursuant to NASDAQ Listing Rule 5635(c), and (ii) pursuant to the Primo Warrants and Primo Warrant Agreement (such terms as defined in the Assignment Agreement).

WHEREAS, the boards of directors of Holdco and the Company have approved and declared advisable this Agreement and the Assignment Agreement and the transactions contemplated hereby and thereby, including, without limitation, the Merger.

WHEREAS, the board of directors of Merger Sub has approved and declared advisable this Agreement and the transactions contemplated hereby, including, without limitation, the Merger.

WHEREAS, the parties intend, for United States federal income tax purposes, that the Merger shall qualify as an exchange described in Sections 351 and 368(a) of the Internal Revenue Code of 1986, as amended (the “ Code ”).

NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Company, Holdco and Merger Sub hereby agree as follows:

1. THE MERGER . In accordance with Section 251(g) of the DGCL and subject to, and upon the terms and conditions of, this Agreement, Merger Sub shall be merged with and into the Company (the “ Merger ”), the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger (the “ Surviving Corporation ”). At the Effective Time, the effects of the Merger shall be as provided in this Agreement and in the DGCL.

2. EFFECTIVE TIME . As soon as practicable on or after the date hereof, the Company shall file a certificate of merger executed in accordance with the relevant provisions of the DGCL, with the Secretary of State of the State of Delaware (the “ Secretary of State ”) and shall make all other filings or recordings required under the DGCL to effectuate the Merger. The Merger shall become effective at such time as the certificate of merger is duly filed with the Secretary of State or at such later date and time as the parties shall agree and specify in the certificate of merger (the date and time the Merger becomes effective being referred to herein as the “ Effective Time ”).

3. CERTIFICATE OF INCORPORATION .

(a) Surviving Corporation . At the Effective Time, the Company Charter shall be amended in the Merger as set forth below, and as so amended, shall be the certificate of incorporation of the Surviving Corporation (the “ Surviving Corporation Charter ”) until thereafter amended as provided therein or by the DGCL:

(i)

ARTICLE I of the Company Charter shall be deleted in its entirety and replaced with the following:

The name of this corporation is Primo Water Operations, Inc. (the “ Corporation ”).

(ii)

The first sentence of ARTICLE IV, Section 4.1 of the Company Charter shall be deleted in its entirety and replaced with the following:

4.1. Authorized Shares . The total number of shares of stock which the Corporation shall have authority to issue is 200 shares, consisting of (a) 100 shares of Preferred Stock, par value $0.001 per share (“ Preferred Stock ”) and (b) 100 shares of Common Stock, par value $0.001 per share (“ Common Stock ”).

(iii)

ARTICLE V, Section 5.2(b) of the Company Charter shall be deleted in its entirety and replaced with the following:

(b) RESERVED .

(iv)

The Company Charter shall be amended by adding ARTICLE IX immediately following ARTICLE VIII to read in its entirety as follows:

Any act or transaction by or involving the Corporation, other than the election or removal of directors of the Corporation, that requires for its adoption under the DGCL or this Certificate of Incorporation the approval of the stockholders of the Corporation shall, in accordance with Section 251(g) of the DGCL, require, in addition, the approval of the stockholders of New PW Holdco, Inc. (or any successor thereto by merger), by the same vote as is required by the DGCL and/or this Certificate of Incorporation.

(b) Holdco . In accordance with Section 251(g) of the DGCL, Holdco agrees to file (and the Company as the sole stockholder of Holdco agrees to approve the filing of) an amended and restated certificate of incorporation of Holdco (the “ Holdco Charter ”) with the Secretary of State prior to the Effective Time to be effective prior to and as of the Effective Time (without, for the avoidance of doubt, giving effect to any of the amendments contemplated by Section 3(a) of this Agreement) containing provisions identical to those in the Company Charter immediately prior to the Effective Time, except as otherwise permitted by Section 251(g) of the DGCL.

4. BYLAWS .

(a) Surviving Corporation . From and after the Effective Time, the Company Bylaws, as in effect immediately prior to the Effective Time, shall constitute the Bylaws of the Surviving Corporation (the “ Surviving Corporation Bylaws ”) until thereafter amended as provided therein or by applicable law.

(b) Holdco . Holdco acknowledges that it has adopted bylaws to be effective prior to and as of the Effective Time (the “ Holdco Bylaws ”) containing provisions identical to those in the Company Bylaws in effect immediately prior to the Effective Time.

5. DIRECTORS AND OFFICERS .

(a) Surviving Corporation . The directors and officers of the Company in office immediately prior to the Effective Time shall be the directors and officers of the Surviving Corporation and will continue to hold office from the Effective Time until the earlier of their resignation or removal or until their successors are duly elected or appointed and qualified in the manner provided in the Surviving Corporation Charter and Surviving Corporation Bylaws, or as otherwise provided by law.

(b) Holdco . The directors and officers of the Company in office immediately prior to the Effective Time shall be the directors and officers of Holdco and will continue to hold office from the Effective Time until the earlier of their resignation or removal or until their successors are duly elected or appointed and qualified in the manner provided in the Holdco Charter and Holdco Bylaws, or as otherwise provided by law.

6. ACTIONS TO BE TAKEN IN CONNECTION WITH THE MERGER .

(a) Post-Effective Amendments . It is the intent of the parties that Holdco, as of the Effective Time, be deemed a “successor issuer” for purposes of continuous offerings of Holdco under the Securities Act of 1933, as amended (the “ Securities Act ”). As soon as practicable following the Merger, Holdco will file post-effective amendments to the Company’s currently effective registration statements, adopting such statements as its own registration statements for all purposes of the Securities Act and the Securities Exchange Act of 1934, as amended, and setting forth any additional information necessary to reflect any material changes made in connection with, or resulting from, the succession or necessary to keep the registration statements from being misleading.

(b) Reservation of Shares . On or prior to the Effective Time, Holdco will reserve sufficient shares of Holdco Stock to provide for the issuance of Holdco Stock to satisfy Holdco’s obligations under this Agreement.

(c) Tax Characterization . Each party hereto shall use its reasonable best efforts to cause the Merger to constitute a tax-free reorganization within the meaning of Section 368 of the Code, and shall not take any actions reasonably likely to cause the Merger not to so qualify, or cause any such actions to be taken.

7. ADDITIONAL ACTIONS . Following the Effective Time, if Holdco shall consider or be advised that any deeds, bills of sale, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm, of record or otherwise, in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either Merger Sub or the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, the Surviving Corporation shall execute and deliver all such deeds, bills of sale, assignments and assurances and to take and do all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

8. CONVERSION OF SECURITIES . At the Effective Time, by virtue of the Merger and without any action on the part of Holdco, Merger Sub, the Company or any holder of any securities thereof:

(a) Conversion of Company Common Stock . Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of Holdco Common Stock.

(b) Conversion of Company Stock Held as Treasury Stock . Each share of Company Common Stock held in the Company’s treasury shall be converted into one validly issued, fully paid and nonassessable share of Holdco Common Stock, to be held immediately after completion of the Merger in the treasury of Holdco.

(c) Conversion of Capital Stock of Merger Sub . Each share of Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share of the Surviving Corporation.

(d) Rights of Certificate Holders . Upon conversion thereof in accordance with this Section 8 , all shares of Company Common Stock shall no longer be outstanding and shall cease to exist, and each holder of a certificate representing any such shares of Company Common Stock shall cease to have any rights with respect to such shares of Company Common Stock, except as set forth in Section 9 herein. In addition, each outstanding book-entry that, immediately prior to the Effective Time, evidenced shares of Company Common Stock shall, from and after the Effective Time, be deemed and treated for all corporate purposes to evidence the ownership of the same number of shares of Holdco Common Stock.

9. CERTIFICATES . At and after the Effective Time until thereafter surrendered for transfer or exchange in the ordinary course, each outstanding certificate which immediately prior thereto represented shares of Company Common Stock shall be deemed for all purposes to evidence ownership of and to represent the shares of Holdco Common Stock, into which the shares of Company Common Stock represented by such certificate have been converted as herein provided and shall be so registered on the books and records of Holdco and its transfer agent. At and after the Effective Time, the shares of capital stock of Holdco shall be uncertificated; provided , that, any shares of capital stock of Holdco that are represented by outstanding certificates of the Company pursuant to the immediately preceding sentence shall continue to be represented by certificates as provided therein and shall not be uncertificated unless and until a valid certificate representing such shares pursuant to the immediately preceding sentence is delivered to Holdco at its registered office in the State of Delaware, its principal place of business, or an officer or agent of Holdco having custody of books and records of Holdco, at which time such certificate shall be canceled and in lieu of the delivery of a certificate representing the applicable shares of capital stock of Holdco, Holdco shall (i) issue to such holder the applicable uncertificated shares of capital stock of Holdco by registering such shares in Holdco’s books and records as book-entry shares, upon which such shares shall thereafter be uncertificated and (ii) take all action necessary to provide such holder with evidence of the uncertificated book-entry shares, including any action necessary under applicable law in accordance therewith, including in accordance with Sections 151(f) and 202 of the DGCL. If any certificate that prior to the Effective Time represented shares of Company Common Stock shall have been lost, stolen or destroyed, then, upon the making of an affidavit of such fact by the person or entity claiming such certificate to be lost, stolen or destroyed and the providing of an indemnity by such person or entity to Holdco, in form and substance reasonably satisfactory to Holdco, against any claim that may be made against it with respect to such certificate, Holdco shall issue to such person or entity, in exchange for such lost, stolen or destroyed certificate, uncertificated shares representing the applicable shares of Holdco Common Stock in accordance with the procedures set forth in the preceding sentence.

10. HOLDCO SHARES . Prior to the Effective Time, the Company and Holdco shall take any and all actions as are necessary to ensure that each share of capital stock of Holdco that is owned by the Company immediately prior to the Effective Time shall be cancelled and cease to be outstanding at the Effective Time, and no payment shall be made therefor, and the Company, by execution of this Agreement, agrees to forfeit such shares and relinquish any rights to such shares.

11. NO APPRAISAL RIGHTS . In accordance with the DGCL, no appraisal rights shall be available to any holder of shares of Company Common Stock in connection with the Merger.

12. TERMINATION . This Agreement may be terminated, and the Merger and the other transactions provided for herein may be abandoned, whether before or after the adoption of this Agreement by the sole stockholder of Merger Sub, at any time prior to the Effective Time, by action by or on behalf of the board of directors of the Company, Merger Sub and Holdco. In the event of termination of this Agreement, this Agreement shall forthwith become void and have no effect, and neither the Company, Holdco, Merger Sub nor their respective stockholders, directors or officers shall have any liability with respect to such termination or abandonment.

13. AMENDMENTS . At any time prior to the Effective Time, this Agreement may be supplemented, amended or modified, whether before or after the adoption of this Agreement, by the mutual consent of the parties to this Agreement by action by their respective boards of directors; provided , however , that, no amendment shall be effected subsequent to the adoption of this Agreement by the sole stockholder of Merger Sub that by law requires further approval or authorization by the sole stockholder of Merger Sub or the stockholders of the Company without such further approval or authorization. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by all of the parties hereto.

14. GOVERNING LAW . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws.

15. COUNTERPARTS . This Agreement may be executed in one or more counterparts, each of which when executed shall be deemed to be an original but all of which shall constitute one and the same agreement.

16. ENTIRE AGREEMENT . This Agreement, including the documents and instruments referred to herein, constitutes the entire agreement and supersedes all other prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

17. SEVERABILITY . The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof.

[Signature Page Follows]

IN WITNESS WHEREOF, the Company, Holdco and Merger Sub have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

	PRIMO WATER CORPORATION


	By:	/s/ David J. Mills
		Name: David J. Mills
		Title: Vice President, Finance

	NEW PW HOLDCO, INC.


	By:	/s/ David J. Mills
		Name: David J. Mills
		Title: Authorized Signatory

	NEW PW MERGER SUB, INC.


	By:	/s/ David J. Mills
		Name: David J. Mills
		Title: Authorized Signatory

[Agreement and Plan of Merger]

Exhibit 3.1

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NEW PW HOLDCO, INC.
a Delaware Corporation

(Pursuant to Sections 242 and 245 of
the Delaware General Corporation Law)

It is hereby certified that:

1. The name of the corporation is NEW PW HOLDCO, INC.

2. The Certificate of Incorporation of the Corporation was originally filed under the name “New PW Holdco, Inc. ” with the Secretary of State of the State of Delaware on April 11, 2017.

3. This Amended and Restated Certificate of Incorporation of the Corporation has been duly proposed and declared advisable by a resolution adopted by the Board of Directors of the Corporation and adopted by the stockholders of the Corporation in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware.

4. The text of the Certificate of Incorporation of the Corporation is hereby amended and restated to read in its entirety as follows:

ARTICLE I

The name of this corporation is New PW Holdco, Inc. (the “ Corporation ”).

ARTICLE II

The address of the Corporation’s registered office in the State of Delaware is 850 New Burton Road, Suite 201, in the City of Dover, County of Kent, 19904. The name of the Corporation’s registered agent at such address is Cogency Global Inc.

ARTICLE III

The nature of the business or purposes of the Corporation to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law, as amended (the “ DGCL ”).

ARTICLE IV

4.1 Authorized Shares . The total number of shares of stock which the Corporation shall have authority to issue is 80,000,000 shares, consisting of (a) 10,000,000 shares of Preferred Stock, par value $0.001 per share (“ Preferred Stock ”) and (b) 70,000,000 shares of Common Stock, par value $0.001 per share (“ Common Stock ”). The number of authorized shares of any of the Preferred Stock or the Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the Preferred Stock or the Common Stock voting separately as a class shall be required therefor.

4.2 Preferred Stock . Subject to any vote expressly required by this Certificate of Incorporation, the Board of Directors of the Corporation (the “ Board of Directors ”) is hereby expressly authorized, by resolution or resolutions, to provide, out of the unissued shares of Preferred Stock, for series of Preferred Stock and, with respect to each such series, to fix the number of shares constituting such series, the designation of such series, the voting powers (if any) of the shares of such series, and the preferences and relative participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, of the shares of such series. The voting powers, preferences and relative participating, optional and other special rights, and the qualifications, limitations or restrictions thereof, if any, of each series of Preferred Stock may differ from those of any and all other series at any time outstanding.

4.3 Common Stock .

(a) Each holder of Common Stock, as such, shall be entitled to one vote in person or by proxy for each share of Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote; provided, however , that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any Certificate of Designation relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any Certificate of Designation relating to any series of Preferred Stock) or pursuant to the DGCL.

(b) Except as otherwise required by law, holders of a series of Preferred Stock shall be entitled only to such voting rights, if any, as shall expressly be granted thereto pursuant to the provisions of this Article IV (including any Certificate of Designation relating to such series).

(c) Upon the dissolution, liquidation or winding up of the Corporation, subject to the rights, if any, of the holders of any outstanding series of Preferred Stock, the holders of the Common Stock, as such, shall be entitled to receive the assets of the Corporation available for distribution to its stockholders ratably in proportion to the number of shares held by them.

ARTICLE V

5.1. General Powers of the Board . The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors or by such committees as the Board of Directors may establish.

5.2 Number of Directors; Election; Term .

(a) Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, the number of directors constituting the entire Board of Directors shall consist of not less than 3 nor more than 12 members, with the precise number of directors to be determined from time to time exclusively by resolution of the Board of Directors.

(b) Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, the directors of the Corporation shall be and are divided into three classes, Class I, Class II and Class III. Such classes shall be as nearly equal in size as is practicable. The term of office of the Class I directors shall expire at the annual meeting of the stockholders to be held in 2014, the term of office of the Class II directors shall expire at the annual meeting of the stockholders to be held in 2012, and the term of office of the Class III directors shall expire at the annual meeting of the stockholders to be held in 2013. Subject to the rights of holders of any series of Preferred Stock with respect to any directors elected (or to be elected) by the holders of such series, at each annual meeting of stockholders each of the successors elected to replace the directors of a class whose term shall have expired at such annual meeting shall be elected to hold office until the third annual meeting next succeeding his or her election and until his or her respective successor shall have been duly elected and qualified.

(c) Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, if the number of directors that constitutes the Board of Directors is changed, any newly created directorships or decrease in directorships shall be so apportioned by the Board of Directors among the classes as to make all classes as nearly equal in number as is practicable, provided that no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

(d) Notwithstanding the foregoing provisions of this Section 5.2, and subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, each director shall serve until his or her successor is duly elected and qualified or until his or her earlier death, resignation, or removal.

5.3 Removal and Resignation of Directors . Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, and except as otherwise provided in the DGCL, a director may be removed from office during such director’s term by the stockholders of the Corporation only for cause. If any directors are so removed, new directors may be elected at the same meeting. Any director may resign at any time by giving written notice to the Board of Directors, the chairperson of the Board of Directors, or the secretary of the Corporation. Such resignation shall take effect at the time specified therein or, if the time be not specified therein, upon receipt thereof, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

5.4 Vacancies . Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, and except as otherwise provided in the DGCL, vacancies occurring on the Board of Directors for any reason and any newly created directorships resulting by reason of any increase in the number of directors may be filled only by vote of a majority of the remaining members of the Board of Directors (and not by the stockholders), although less than a quorum, or by a sole remaining director, at any meeting of the Board of Directors. A person so elected by the Board of Directors to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been assigned by the Board of Directors and until such director’s successor shall be duly elected and qualified or, if earlier, such director’s death, resignation or removal.

5.5 Elections of Directors . Elections of directors need not be by ballot unless the bylaws of the Corporation (the “Bylaws”) shall so provide.

5.6 Bylaws . The Board of Directors shall have the power to adopt, amend, alter, change or repeal any and all Bylaws.

ARTICLE VI

6.1 No Stockholder Action by Written Consent . Except as may be provided in a resolution or resolutions of the Board of Directors providing for any series of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of such stockholders and may not be effected by any written consent in lieu of a meeting by such stockholders.

6.2 Special Meetings of Stockholders . Except as may be provided in a resolution or resolutions of the Board of Directors providing for any series of Preferred Stock, special meetings of stockholders of the Corporation may be called only by the Board of Directors, the chairperson of the Board of Directors, the chief executive officer or the president (in the absence of a chief executive officer), and the ability of the stockholders to call a special meeting is hereby specifically denied. The Board of Directors may cancel, postpone or reschedule any previously scheduled special meeting at any time, before or after the notice for such meeting has been sent to the stockholders. At any special meeting of stockholders, only such business shall be conducted as shall have been brought before the special meeting specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors.

ARTICLE VII

7.1 Limitation of Personal Liability . To the fullest extent permitted by the DGCL, as it presently exists or may hereafter be amended from time to time, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Any repeal or amendment of this Section 7.1 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Certificate of Incorporation inconsistent with this Section 7.1 will, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to further limit or eliminate the liability of directors) and shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or amendment or adoption of such inconsistent provision with respect to acts or omissions occurring prior to such repeal or amendment or adoption of such inconsistent provision.

7.2 Indemnification . To the fullest extent permitted by the DGCL, as it presently exists or may hereafter be amended from time to time, the Corporation is also authorized to provide indemnification of (and advancement of expenses to) its directors, officers and agents of the Corporation (and any other persons to which the DGCL permits the Corporation to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise.

ARTICLE VIII

Subject to the provisions of this Certificate of Incorporation and applicable provisions of the DGCL, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation (including any rights, preferences or other designations of Preferred Stock) in any manner now or hereafter prescribed by this Certificate of Incorporation and the DGCL, and all rights, preferences, privileges and powers conferred upon stockholders and/or directors by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to this reservation. In addition to any vote of the holders of any class or series of the stock of this Corporation required by law, this Certificate of Incorporation, any agreement with a national securities exchange or otherwise, the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend or repeal the provisions of this Certificate of Incorporation; provided, however, that the affirmative vote of the holders of at least two-thirds (66 ² /3%) of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter or repeal, or adopt any provision as part of this Certificate of Incorporation inconsistent with the purpose and intent of Article V, Article VI or this Article VIII (including, without limitation, any such Article as renumbered as a result of any amendment, alteration, change, repeal or adoption of any other Article).

* * *

IN WITNESS WHEREOF , this Amended and Restated Certificate of Incorporation has been executed by a duly authorized officer of the Corporation on this 18th day of May, 2017.

	NEW PW HOLDCO, INC.



	By:	/s/ Billy D. Prim
		Billy D. Prim, Chief Executive Officer

Exhibit 3.2

BYLAWS
OF
NEW PW HOLDCO, INC.

ARTICLE I
OFFICES

SECTION 1.01 . Principal Office . The principal office of New PW Holdco, Inc. (the “Corporation”) shall be located in Winston-Salem, North Carolina or such other place as is designated by the Board of Directors of the Corporation (the “Board of Directors”).

SECTION 1.02 . Registered Office . The registered office of the Corporation required by law to be maintained in the State of Delaware shall be in the City of Wilmington, County of New Castle, and the resident agent in charge thereof shall be Corporation Trust Company, or such other office or agent as the Board of Directors shall from time to time select.

SECTION 1.03 . Other Offices . The Corporation may also have an office or offices, and keep the books and records of the Corporation, except as may otherwise be required by law, at such other places, either within or without the State of Delaware, as the Board of Directors may from time to time determine or as the affairs of the Corporation may require.

ARTICLE II
MEETINGS OF STOCKHOLDERS

SECTION 2.01 . Time and Place of Meetings . The meetings of the stockholders shall be held at such time and place, either within or without the State of Delaware, as shall from time to time be fixed by the Board of Directors. The Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “DGCL”) (or any successor provision thereto). Any previously scheduled meeting of the stockholders may be postponed by action of the Board of Directors taken prior to the time previously scheduled for such meeting of stockholders.

SECTION 2.02 . Annual Meeting . The annual meeting of the stockholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on such date and at such hour as shall from time to time be fixed by the Board of Directors.

SECTION 2.03 . Notice of Meetings . Except as otherwise provided by law or by the Certificate of Incorporation of the Corporation (the “Certificate”), notice of each meeting of the stockholders, whether annual or special, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to notice of the meeting. If mailed, such notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. Each such notice shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy without protesting, prior to or at the commencement of the meeting, the lack of proper notice to such stockholder, or who shall waive notice thereof as provided in Article VIII of these Bylaws. When a meeting is adjourned for thirty (30) days or more, or when a new record date is fixed after the adjournment for the adjourned meeting, notice of the adjourned meeting shall be given as in the case of an original meeting. When a meeting is adjourned for less than thirty (30) days in any one adjournment and a new record date is not fixed, it is not necessary to give any notice of the time and place of the adjourned meeting or of the business to be transacted thereat other than by announcement at the meeting at which the adjournment is taken.

SECTION 2.04 . Voting Lists . The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be produced and kept available at the times and places required by law.

SECTION 2.05 . Quorum .

(a) Unless otherwise provided by law, the holders of a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. When a quorum is present at the original meeting, any business which might have been transacted at the original meeting may be transacted at an adjourned meeting, even when a quorum is not present. In the absence of a quorum at the opening of any meeting of stockholders, such meeting may be adjourned from time to time by the Board of Directors or the vote of a majority of the shares voting on the motion to adjourn, but no other business may be transacted until and unless a quorum is present. If later a quorum is present at an adjourned meeting, then any business may be transacted which might have been transacted at the original meeting.

(b) The stockholders at a meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of sufficient stockholders to leave less than a quorum.

SECTION 2.06 . Order of Business; Advance Notice of Stockholder Proposals . At any annual meeting of stockholders, only such business shall be conducted as shall have been brought before the annual meeting (a) by or at the direction of the chairman of the meeting, or (b) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (c) by any stockholder who is a holder of record at the time of the giving of the notice provided for in this Section 2.06, who is entitled to vote at the meeting and who complies with the procedures set forth in this Section 2.06.

At each meeting of the stockholders, the Chairman of the Board of Directors or, in the absence of the Chairman of the Board of Directors, the President or, in the absence of the Chairman of the Board of Directors and the President, such person as shall be selected by the Board of Directors shall act as chairman of the meeting. The order of business at each such meeting shall be as determined by the chairman of the meeting. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting including the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the Corporation, restrictions on entry to such meeting after the time prescribed for the commencement thereof and the opening and closing of the voting polls.

For business properly to be brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in proper written form to the Secretary. To be timely, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the Corporation not less than 90 days nor more than 120 days prior to the first anniversary of the date of the immediately preceding annual meeting; provided , however , that in the event that the date of the annual meeting is more than 30 days earlier or more than 60 days later than such anniversary date, notice by the stockholder to be timely must be so delivered or received not earlier than the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made. Each such notice to the Secretary shall set forth in writing:

(a) the name and address of the stockholder and any Stockholder Associated Person (hereinafter defined) of such stockholder;

(b) a representation that the stockholder or Stockholder Associated Person intends to appear in person or by proxy at the meeting to make the nomination or bring up the matter specified in the notice;

(c) as to each of the stockholder and all Stockholder Associated Persons, if any, of such stockholder (i) the class or series and number of shares of the Corporation which are directly or indirectly owned beneficially and of record by such stockholder or Stockholder Associated Person; (ii) any option, warrant, convertible security, stock appreciation right or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by such stockholder or Stockholder Associated Person, and any other direct or indirect opportunity of such stockholder or Stockholder Associated Person to profit or share in any profit derived from any increase or decrease in the value of the shares of the Corporation; (iii) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder or Stockholder Associated Person has a right to vote any shares of any security of the Corporation; (iv) any short interest of such stockholder or Stockholder Associated Person in any security of the Corporation (for purposes of these Bylaws, a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security); (v) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder or Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner; and (vi) any performance-related fees that such stockholder or Stockholder Associated Person is entitled to receive, either directly or indirectly, based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments; in each case, if any, such information shall be as of the date of such notice, (which information shall be supplemented by such stockholder as to itself and any Stockholder Associated Person not later than 10 days after the record date for the meeting to disclose such ownership as of the record date);

(d) a brief description of each item of business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting;

(e) any interest of the stockholder or any Stockholder Associated Person, if any, in such business, including a description of all arrangements and understandings between or among any stockholder, any Stockholder Associated Person, if any, and any other person or persons (naming such person or persons) in connection with the proposal of such business; and

(f) if the stockholder intends to solicit proxies in support of such stockholder’s proposal, a representation to that effect.

If a stockholder who otherwise has given proper notice of a proposal does not appear or send a qualified representative to present such proposal at such annual meeting or is no longer a holder of record on the date of such meeting, the Corporation need not present such proposal for a vote at such meeting, notwithstanding that proxies in respect of such vote may have been received by the Corporation. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at any annual meeting except in accordance with the procedures set forth in this Section 2.06. The chairman of an annual meeting may refuse to permit any business to be brought before an annual meeting which fails to comply with the foregoing procedures or, in the case of a stockholder proposal, if the stockholder solicits proxies in support of such stockholder’s proposal without having made the representation required by clause (f) of the immediately preceding paragraph.

For purposes of this Section 2.06 and Section 3.04 below:

(1) The term “public announcement” shall mean disclosure (i) in a press release reported by the Dow Jones News Service, Reuters Information Service or any similar or successor news wire service or (ii) in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) or any successor provisions thereto; and

(2) The term “Stockholder Associated Person” shall mean, with respect to a stockholder, (A) any person controlling, directly or indirectly, or acting in concert with, such stockholder, (B) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder, including interests held by members of such stockholder’s immediate family sharing the same household, and (C) any person controlling, controlled by or under common control with such Stockholder Associated Person.

Notwithstanding anything in this Section 2.06 to the contrary, a stockholder seeking to include a proposal in a proxy statement that has been prepared by the Corporation to solicit proxies also shall comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.06. Nothing in this Section 2.06 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to applicable rules and regulations promulgated under the Exchange Act.

SECTION 2.07 . Voting of Shares . Except as otherwise provided by law or by the Certificate, each stockholder of record of any series of preferred stock shall be entitled at each meeting of stockholders to such number of votes, if any, for each share of such stock, as may be fixed in the Certificate or in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such stock, and each stockholder of record of common stock shall be entitled at each meeting of stockholders to one vote for each share of such stock, in each case, registered in such stockholder’s name on the books of the Corporation:

(a) on the date fixed pursuant to Section 6.06 of these Bylaws as the record date for the determination of stockholders entitled to notice of and to vote at such meeting; or

(b) if no such record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of such meeting is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.

Each stockholder entitled to vote at any meeting of stockholders may authorize one or more persons to act for such stockholder by proxy. Any such proxy shall be delivered to the secretary of such meeting at or prior to the time designated for holding such meeting, but in any event not later than the time designated in the order of business for so delivering such proxies. No such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.

At each meeting of the stockholders, all corporate actions to be taken by vote of the stockholders (except as otherwise required by law and except as otherwise provided for or fixed by or pursuant to the Certificate or these Bylaws) shall be authorized by a majority of the votes cast by the stockholders entitled to vote thereon who are present in person or represented by proxy, and where a separate vote by class or series is required, a majority of the votes cast by the stockholders of such class or series who are present in person or represented by proxy shall be the act of such class or series.

Unless required by law or determined by the chairman of the meeting to be advisable, the vote on any matter, including the election of directors, need not be by written ballot.

SECTION 2.08 . Inspectors of Election .

(a) In advance of any meeting of stockholders, the Board of Directors may appoint any persons, other than nominees for office, as inspectors of election to act at such meeting or any adjournment thereof. If inspectors of election are not so appointed, the chairman of any such meeting may appoint inspectors of election at the meeting. The number of inspectors shall be either one or three. In case any person appointed as inspector fails to appear or fails or refuses to act, the vacancy may be filled by appointment by the Board of Directors in advance of the meeting or at the meeting by the person acting as chairman.

(b) The inspectors of election shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, the authenticity, validity and effect of proxies, receive votes, ballots or consents, hear and determine all challenges and questions in any way arising in connection with the right to vote, count and tabulate all votes or consents, determine the result and do such acts as may be proper to conduct the election or vote with fairness to all stockholders. The inspectors of election shall perform their duties impartially, in good faith, to the best of their ability and as expeditiously as is practical.

(c) If there are three inspectors of election, the decision, act or certificate of a majority shall be effective in all respects as the decision, act or certificate of all.

(d) On request of the chairman of the meeting, the inspectors shall make a report in writing of any challenge or question or matter determined by them and shall execute a certificate of any fact found by them. Any report or certificate made by them shall be a prima facie evidence of the facts stated therein.

ARTICLE III
BOARD OF DIRECTORS

SECTION 3.01 . General Powers . In accordance with the Certificate, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors or by such committees as the Board of Directors may establish pursuant to these Bylaws, except as otherwise provided by law or by the Certificate. If any such provision is made in the Certificate, the powers and duties imposed upon the Board of Directors by law shall be exercised or performed to such extent and by such person or persons as shall be provided in the Certificate.

SECTION 3 .02 . Number and Term . The number of directors of the Corporation shall be determined in accordance with the Certificate. Each director shall hold office until his death, resignation, retirement, removal, disqualification, or his successor is elected and qualifies. Directors need not be residents of the State of Delaware or stockholders of the Corporation.

SECTION 3 .03 . Election of Directors . Except as provided in the Certificate, the directors shall be elected at the annual meeting of stockholders. Those persons who receive the highest number of votes shall be deemed to have been elected.

SECTION 3.04 . Notification of Nominations . Nominations for the election of directors may be made by or at the direction of the Board of Directors, or by any stockholder who is a stockholder of record at the time of the giving of notice of nomination provided for in this Section 3.04 and is entitled to vote for the election of directors, and who complies with the procedures set forth in this Section 3.04. Any stockholder of record entitled to vote for the election of directors at a meeting may nominate persons for election as directors only if timely written notice of such stockholder’s intent to make such nomination is given, either by personal delivery or by United States mail, postage prepaid, to the Secretary. To be timely, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the Corporation with respect to an election to be held at an annual meeting of stockholders, not less than 90 days nor more than 120 days prior to the first anniversary of the date of the immediately preceding annual meeting; provided , however , that in the event that the date of the annual meeting is more than 30 days earlier or more than 60 days later than such anniversary date, notice by the stockholder to be timely must be so delivered or received not earlier than the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made. Each such notice shall set forth:

(a) the name and address of the stockholder who intends to make the nomination and any Stockholder Associated Person of such stockholder, and of the person or persons to be nominated;

(b) as to such stockholder and all Stockholder Associated Persons, if any, of such stockholder (i) the class or series and number of shares of the Corporation which are directly or indirectly owned beneficially and of record by such stockholder or Stockholder Associated Person; (ii) a Derivative Instrument directly or indirectly owned beneficially by such stockholder or Stockholder Associated Person, and any other direct or indirect opportunity of such stockholder or Stockholder Associated Person to profit or share in any profit derived from any increase or decrease in the value of the shares of the Corporation; (iii) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder or Stockholder Associated Person has a right to vote any shares of any security of the Corporation; (iv) any short interest of such stockholder or Stockholder Associated Person in any security of the Corporation (for purposes of these Bylaws, a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security); (v) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder or Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner; and (vi) any performance-related fees that such stockholder or Stockholder Associated Person is entitled to receive, either directly or indirectly, based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments; in each case, if any, such information shall be as of the date of such notice, (which information shall be supplemented by such stockholder as to itself and any Stockholder Associated Person not later than 10 days after the record date for the meeting to disclose such ownership as of the record date);

(c) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice;

(d) a description of all arrangements or understandings between or among the stockholder, any Stockholder Associated Person, and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder;

(e) such other information regarding each nominee proposed by such stockholder as would have been required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission, or to be obtained by the Corporation from such nominee in connection with such proxy statement, had each nominee been nominated, or intended to be nominated, by the Board of Directors, and an agreement by each nominee to furnish such information as may reasonably be required by the Corporation determine the eligibility of such nominee to serve as an independent director of the Corporation, or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, or such nominee;

(f) the consent of each nominee to serve as a director if so elected; and

(g) if the stockholder intends to solicit proxies in support of such stockholder’s nominee(s), a representation to that effect.

The chairman of the meeting may refuse to acknowledge the nomination of any person not made in compliance with the foregoing procedure or if the stockholder solicits proxies in favor of such stockholder’s nominee(s) without having made the representation required by clause (g) of the immediately preceding paragraph. Only such persons who are nominated in accordance with the procedures set forth in this Section 3.04 shall be eligible to serve as directors of the Corporation.

Notwithstanding anything in the immediately preceding paragraph of this Section 3.04 to the contrary, in the event that the number of directors to be elected to the Board of Directors at an annual meeting of stockholders is increased and there is no public announcement naming all of the nominees for directors or specifying the size of the increased Board of Directors made by the Corporation at least 90 days prior to the first anniversary of the date of the immediately preceding annual meeting, a stockholder’s notice required by this Section 3.04 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to or mailed to and received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation.

SECTION 3 .05 . Chairman . There may be a Chairman of the Board of Directors elected by the directors from their number at any meeting of the Board of Directors. The Board of Directors shall designate the Chairman as either a “non-executive” Chairman of the Board of Directors or, in accordance with Section 5.05 of these Bylaws, an Executive Chairman of the Board of Directors. References in these Bylaws to the “Chairman of the Board of Directors” shall mean the non-executive Chairman or the Executive Chairman, as designated by the Board of Directors. The Chairman shall preside at all meetings of the Board of Directors and of stockholders and perform such other duties as may be directed by the Board of Directors. Until a Chairman of the Board of Directors is elected, the President of the Corporation shall preside at the meetings of the Board of Directors and stockholders.

SECTION 3 .06 . Compensation . The Board of Directors may provide for the compensation of directors for their services as such and may provide for the payment of any and all expenses incurred by the directors in connection with such services. Nothing in this Section 3.08 shall preclude any director from serving the Corporation or any of its subsidiaries in any other capacity and receiving proper compensation therefor.

SECTION 3.07 . Committees . The Board of Directors, by resolution adopted by a majority of the entire Board of Directors, shall designate from among its members an Audit Committee and may designate from among its members a Nominating and Governance Committee, a Compensation Committee, and other committees, each consisting of one or more directors, with such functions, duties and powers as the Board of Directors shall by resolution prescribe. A majority of all the members of any such committee may determine its actions and rules or procedure, and fix the time, place and manner of its meetings, unless the Board of Directors shall otherwise provide. The Board of Directors shall have power to change the members of any such committee at any time, to fill vacancies, and to discharge any such committee, either with or without cause, at any time.

ARTICLE IV
MEETINGS OF DIRECTORS

SECTION 4 .01 . Regular Meetings . The Board of Directors may provide, by resolution, the time and place for the holding of regular meetings.

SECTION 4 .02 . Special Meetings . Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board of Directors (if one has been duly elected), the President or any two directors, and shall be held at such place, on such date and at such time as he or they, as applicable, shall fix.

SECTION 4.03 . Notice of Meetings . Regular meetings of the Board of Directors may be held without notice. Notice of an adjourned meeting need not be given if the time and place are fixed at the meeting adjourning and if the period of adjournment does not exceed ten (10) days in any one adjournment. The person or persons calling a special meeting of the Board of Directors shall, at least two (2) days before the meeting, give notice thereof by any usual means of communication. Such notice need not specify the purpose for which the meeting is called. A director may waive notice of any meeting. Attendance by a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened.

SECTION 4.04 . Quorum . A majority of the directors in office immediately before the meeting shall constitute a quorum for the transaction of business at any meeting of the Board of Directors.

SECTION 4.05 . Manner of Acting .

(a) The act of a majority of the directors then in office shall be the act of the Board of Directors, unless a greater number is required by law, the Certificate, or these Bylaws.

(b) A director, who is present at a meeting of the Board of Directors at which action on any corporate matter is taken, shall be presumed to have assented to the action taken unless such Director’s contrary vote is recorded or such director’s dissent is otherwise entered in the minutes of the meeting or unless he or she shall file his or her written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or promptly following approval of the minutes of such meeting. Such right of dissent shall not apply to a director who voted in favor of such action.

SECTION 4 .06 . Action By Consent . Unless otherwise restricted by the Certificate or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may by taken without a meeting if all members of the Board of Directors or of any such committee, as the case may be, consent thereto in writing, by electronic transmission or transmissions, or as otherwise permitted by law, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee.

SECTION 4 .07 . Participation in Meeting by Means of Communications Equipment . Any one or more directors or members of a committee may participate in a meeting of the Board of Directors or of any such committee by means of a conference telephone or similar communications device which allows all persons participating in the meeting to hear each other or as otherwise permitted by law, and such participation in the meeting shall constitute presence in person at such meeting.

ARTICLE V
OFFICERS

SECTION 5 .01 . Number . The officers of the Corporation shall consist of a Chief Executive Officer (who may also be the President), a President, a Secretary, a Treasurer, a Controller, and such Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers as the Board of Directors may from time to time elect, each to have such authority, functions or duties as provided in these Bylaws or as the Board of Directors may from time to time determine. The compensation of all officers of the Corporation shall be fixed in the manner prescribed by the Board of Directors. Any two or more offices, other than that of President and Secretary, may be held by the same person. In no event, however, may an officer act in more than one capacity where action of two or more officers is required.

SECTION 5 .02 . Election and Term . The officers of the Corporation shall be elected by the Board of Directors, either at a meeting of the Board of Directors or without a meeting by consent as provided in Section 4.06. Each officer shall hold office until such officer’s death, resignation, retirement, removal, disqualification, or such officer’s successor is elected and qualifies.

SECTION 5 .03 . Removal . Any officer or agent elected or appointed by the Board of Directors may be removed with or without cause by the Board of Directors or by the Chief Executive Officer, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

SECTION 5.04 . Resignation . Any officer may resign at any time by giving notice to the Board of Directors, the Chief Executive Officer, the President or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later date specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

SECTION 5.05 . Chairman of the Board . The Board of Directors may, but need not, appoint from among its members an officer designated as the Chairman of the Board. The Board of Directors shall specify whether such Chairman of the Board of Directors is a non-executive Chairman of the Board of Directors or an Executive Chairman. If there is appointed a Chairman of the Board and such Chairman of the Board is also designated by the Board of Directors to be the Chief Executive Officer, then the Chairman of the Board shall have all of the duties and authority of the Chief Executive Officer and shall also, when present, preside over meetings of the stockholders and the Board of Directors. If there is a Chairman of the Board but such Chairman of the Board is not also designated as the Chief Executive Officer, then the Chairman of the Board shall, when present, preside over meetings of the Board of Directors and shall have such other duties and authority as may be prescribed from time to time by the Board of Directors or as are provided for elsewhere in these Bylaws. In the event that the Board of Directors designates its Chairman of the Board of Directors as an Executive Chairman, such Executive Chairman shall, in addition to his other duties as provided by these Bylaws, shall advise and counsel the Chief Executive Officer (if such Executive Chairman is also not serving as the Chief Executive Officer) and the other officers of the Corporation upon the request of such officers. The designation of and any reference to the Chairman of the Board may be shortened to “the Chairman,” and all references to either “the Chairman of the Board” or “the Chairman” of the Corporation shall mean the Chairman of the Board described in this Section 5.05.

SECTION 5.06 . Chief Executive Officer . If there is a Chairman of the Board and the Board of Directors designates the Chairman of the Board as the Chief Executive Officer, then the Chairman of the Board shall be the Chief Executive Officer of the Corporation. Otherwise, the President shall be the Chief Executive Officer of the Corporation. Subject to the control of the Board of Directors, the Chief Executive Officer shall supervise and control the management of the Corporation and shall have such duties and authority as are normally incident to the position of chief executive officer of a corporation and such other duties and authority as may be prescribed from time to time by the Board of Directors or as are provided for elsewhere in these Bylaws. The title of the Chairman of the Board or President, as the case may be, serving as the Chief Executive Officer may, but need not, also refer to his or her position as Chief Executive Officer.

SECTION 5.07 . Chief Operating Officer . If there is appointed a Chairman of the Board who is also the Chief Executive Officer but who is not the President, then the President shall be the Chief Operating Officer. If the President is the Chief Executive Officer, then the President shall also have the duties and authority of the Chief Operating Officer unless the Board of Directors shall designate some other officer of the Corporation as the Chief Operating Officer. Subject to the direction and control of the Chief Executive Officer and the Board of Directors, the Chief Operating Officer shall supervise and control the operations of the Corporation, shall have such duties and authority as are normally incident to the position of chief operating officer of a corporation and such other duties as may be prescribed from time to time by the Chief Executive Officer or the Board of Directors, and, in the absence or disability of the Chief Executive Officer, shall have the authority and perform the duties of the Chief Executive Officer. The title of the President or other officer serving as the Chief Operating Officer may, but need not, also refer to his or her position as Chief Operating Officer.

SECTION 5.08 . President . Unless the Chairman of the Board is also designated the Chief Executive Officer, the President shall be the Chief Executive Officer of the Corporation and shall have all of the duties and authority of that office. If the President is not the Chief Executive Officer, then the President shall be the Chief Operating Officer and shall have all of the duties and authority of that office. If the President shall be the Chief Executive Officer and no other officer shall have been designated by the Board of Directors as the Chief Operating Officer, then the President shall also have all of the duties and authority of the Chief Operating Officer. The President shall also have such other duties and authority as may be prescribed from time to time by the Board of Directors. He or she shall sign, with any other proper officer, certificates for shares of the Corporation and any deeds, mortgages, bonds, contracts, or other instruments which may be lawfully executed on behalf of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be delegated by the Board of Directors to some other officer or agent; and, in general, he or she shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time

SECTION 5.09 . Vice Presidents . Each Vice President shall perform such duties and have such powers as are normally incident to the office of Vice President or as shall be prescribed by the Chief Executive Officer, the Chief Operating Officer or the Board of Directors. In addition, each Vice President shall have the authority, on behalf of the Corporation, to execute documents and take other actions (a) that have been approved by the Board of Directors, by either specific or general authorization, or (b) that otherwise are executed or taken in the ordinary course of the Corporation’s business and are within the general powers normally incident to such Vice President’s office or prescribed for such Vice President by the Chief Executive Officer, the Chief Operating Officer or the Board of Directors. The Board of Directors may designate a particular Vice President or particular Vice Presidents to have the authority and perform the duties of the President in the absence or disability of the President (including the duties and authority of the President as either Chief Executive Officer or Chief Operating Officer or both, if the President serves as such).

SECTION 5 .10 . Secretary . The Secretary shall have the responsibility and authority to maintain and authenticate the records of the Corporation; shall keep, or cause to be kept, accurate records of the acts and proceedings of all meetings of stockholders, directors and committees of the Board of Directors; shall give, or cause to be given, all notices required by law and by these Bylaws; shall have general charge of the corporate books and records and of the corporate seal, and shall affix the corporate seal to any lawfully executed instrument requiring it; shall have general charge of the stock transfer books of the Corporation and shall keep, or cause to be kept, all records of stockholders as are required by applicable law or these Bylaws; shall sign such instruments as may require the signature of the Secretary; and, in general, shall perform all duties incident to the office of Secretary and such other duties as may be assigned to him or her from time to time by the Chief Executive Officer, the Chief Operating Officer, or the Board of Directors

SECTION 5 .11 . Treasurer . The Treasurer shall have custody of all funds and securities belonging to the Corporation and shall receive, deposit or disburse the same under the direction of the Board of Directors; shall keep, or cause to be kept, full and accurate accounts of the finances of the Corporation in books especially provided for that purpose, and shall generally have charge over the Corporation’s accounting and financial records; shall cause a true statement of its assets and liabilities as of the close of each fiscal year, and of the results of its operations and of cash flows for such fiscal year, all in reasonable detail, including particulars as to convertible securities then outstanding, to be made as soon as practicable after the end of such fiscal year. The Treasurer shall also prepare and file, or cause to be prepared and filed, all reports and returns required by Federal, State or local law and shall generally perform all other duties incident to the office of Treasurer and such other duties as may be assigned to him or her from time to time by the Chief Executive Officer, the Chief Operating Officer or the Board of Directors

SECTION 5 .12 . Assistant Secretaries and Treasurers . The Assistant Secretaries and Assistant Treasurers shall, in the absence or disability of the Secretary or the Treasurer, perform the respective duties and exercise the respective powers of those offices, and they shall, in general, perform such other duties as shall be assigned to them by the Secretary or the Treasurer, respectively, or by the President or by the Board of Directors.

SECTION 5 .13 . Controller and Assistant Controllers . The Controller shall be the chief accounting officer of the Corporation. The Controller shall, when requested, counsel with and advise the other officers of the Corporation and shall perform such other duties as may be assigned to him or her from time to time by the Chief Executive Officer, the Chief Operating Officer, or the Board of Directors. Each Assistant Controller shall have such powers and perform such duties as may be assigned by the Board of Directors, and the Assistant Controllers shall exercise the powers of the Controller during that officer’s absence or inability to act.

ARTICLE VI
CERTIFICATES FOR SHARES AND OTHER TRANSFERS

SECTION 6.01 . Certificates for Shares . The shares of stock of the Corporation shall be represented by certificates, or shall be uncertificated shares that may be evidenced by a book-entry system maintained by the registrar of such stock, or a combination of both. To the extent that shares are represented by certificates, such certificates shall be in such form as shall be approved by the Board of Directors. The certificates representing shares of stock of each class shall be signed by or in the name of the Corporation by the Chairman of the Board or the President or a Vice President, and by the Treasurer or any Assistant Treasurer or the Secretary or any Assistant Secretary. Any or all such signatures may be facsimiles if countersigned by a transfer agent or registrar. Although any officer, transfer agent or registrar whose manual or facsimile signature is affixed to such a certificate ceases to be such officer, transfer agent or registrar before such certificate has been issued, it may nevertheless be issued by the Corporation with the same effect as if such officer, transfer agent or registrar held such position at the date of its issue. The stock ledger and blank share certificates shall be kept by the Secretary or by a transfer agent or by a registrar or by any other officer or agent designated by the Board of Directors

SECTION 6.02 . Transfer of Shares . Transfer of shares shall be made on the stock transfer books of the Corporation only upon surrender of the certificates for the shares sought to be transferred by the record holder thereof or by such holder’s duly authorized agent, transferee or legal representative. All certificates surrendered for transfer shall be canceled before new certificates for the transferred shares shall be issued.

SECTION 6.03 . Transfer Agent and Registrar . The Board of Directors may appoint, or authorize any officer or officers to appoint, one or more transfer agents and one or more registrars of transfer.

SECTION 6.04 . Registered Stockholders and Addresses of Stockholders . The Corporation may treat as absolute owner of the shares the person in whose name the shares stand of record on its books just as if that person had full competency, capacity, and authority to exercise all rights of ownership irrespective of any knowledge or notice to the contrary or any description indicating a representative, pledge or other fiduciary relation or any reference to any other instrument or to the rights of any other person appearing upon its record or upon the share certificate; except (i) any person furnishing to the Corporation proof of his/her appointment as a fiduciary shall be treated as if he or she were a holder of record of the Corporation’s shares and (ii) as otherwise provided by the laws of Delaware.

Each stockholder shall designate to the Secretary or transfer agent of the Corporation an address at which notices of meetings and all other corporate notices may be given to such person, and, if any stockholder shall fail to designate such address, corporate notices may be given to such person by mail directed to such person at such person’s post office address, if any, as the same appears on the stock record books of the Corporation or at such person’s last known post office address.

SECTION 6.05 . Lost, Destroyed and Mutilated Certificates . The holder of any certificate representing any shares of stock of the Corporation shall immediately notify the Corporation of any loss, theft, destruction or mutilation of such certificate; the Corporation may issue to such holder a new certificate or certificates for shares, upon the surrender of the mutilated certificate or, in the case of loss, theft or destruction of the certificate, upon satisfactory proof of such loss, theft or destruction; the Board of Directors, or a committee designated thereby, or the transfer agents and registrars for the stock, may, in their discretion, require the owner of the lost, stolen or destroyed certificate, or such person’s legal representative, to give the Corporation a bond in such sum and with such surety or sureties as they may direct to indemnify the Corporation and said transfer agents and registrars against any claim that may be made on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

SECTION 6.06 . Fixing Date for Determination of Stockholders of Record . In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided , however , that the Board of Directors may fix a new record date for the adjourned meeting.

SECTION 6.07 . Regulations . The Board of Directors may make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificated or uncertificated shares of stock of each class of the Corporation and may make such rules and take such action as it may deem expedient concerning the issue of certificates in lieu of certificates claimed to have been lost, destroyed, stolen or mutilated.

ARTICLE VII
INDEMNIFICATION AND REIMBURSEMENT
OF DIRECTORS AND OFFICERS

SECTION 7.01 . Indemnification of Directors and Officers in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation . Subject to Sections 7.03 and 7.11, the Corporation shall indemnify any person who serves or has served as a director or officer of the Corporation and who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that such person is or was such a director or officer, or is or was an employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea or nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

SECTION 7.02 . Indemnification of Directors and Officers in Actions, Suits or Proceedings by or in the Right of the Corporation . Subject to Sections 7.03 and 7.11, the Corporation shall indemnify any person who serves or has served as a director or officer of the Corporation and who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was such a director or officer, or is or was an employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which the Court of Chancery or such other court shall deem proper.

SECTION 7.03 . Authorization of Indemnification . Any indemnification under this Article VII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 7.01 or Section 7.02, as the case may be. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (b) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (c) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (d) by the stockholders. Such determination shall be made, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Corporation. To the extent, however, that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding set forth in Section 7.01 or Section 7.02 or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.

SECTION 7.04 . Good Faith Defined . For purposes of any determination under Section 7.03, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe such person’s conduct was unlawful, if such person’s action is based on good faith reliance on the records or books of account of the Corporation or another enterprise, or on information supplied to such person by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term “another enterprise” as used in this Section 7.04 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 7.04 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 7.01 or Section 7.02, as the case may be.

SECTION 7.05 . Indemnification by a Court . Notwithstanding any contrary determination in the specific case under Section 7.03, and notwithstanding the absence of any determination thereunder, any director or officer may apply to the Court of Chancery in the State of Delaware for indemnification to the extent otherwise permissible under Section 7.01 or Section 7.02. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standards of conduct set forth in Section 7.01 or Section 7.02. Neither a contrary determination in the specific case under Section 7.03 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 7.05 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.

SECTION 7.06 . Expenses Payable in Advance . Subject to Section 7.11, expenses (including attorneys’ fees) actually and reasonably incurred by a current or former director or officer in defending any civil, criminal, administrative or investigative action, suit or proceeding with respect to which indemnification may be provided under Section 7.01 or Section 7.02 above shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article VII. Such expenses (including attorneys’ fees) incurred by former directors or officers may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate, consistent with its obligation to promptly pay all such expenses actually and reasonably incurred.

SECTION 7.07 . Nonexclusivity of Indemnification and Advancement of Expenses . The indemnification and advancement of expenses provided by or granted pursuant to this Article VII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses are or at any time may be entitled under the DGCL, the Certificate, any agreement, vote of stockholders or disinterested Directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 7.01 and Section 7.02 shall be made to the fullest extent permitted by law. The provisions of this Article VII shall not be deemed to preclude the indemnification of any person who is not specified in Section 7.01 or Section 7.02 but whom the Corporation has the power or obligation to indemnify under the provisions of the DGCL, or otherwise.

SECTION 7.08 . Insurance . The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power or the obligation to indemnify such person against such liability under the provisions of this Article VII.

SECTION 7.09 . Certain Definitions . For purposes of this Article VII, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger with the Corporation which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agent so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VII, references to “fines” shall include any excise taxes assessed on a person with respect of any employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VII.

SECTION 7.10 . Survival of Indemnification and Advancement of Expenses . The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. Accordingly, unless the context otherwise requires, all references in this Article VII to a director or officer shall also include a former director or officer.

SECTION 7.11 . Limitation on Indemnification and Advancement of Expenses . Notwithstanding anything contained in this Article VII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 7.05), the Corporation shall not be obligated under this Article VII to indemnify, or advance expenses to, any person in connection with (a) a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors, or (b) proceedings or claims involving the enforcement of any employment, severance, lock-up, non-competition, compensation, or other plan or agreement with or of the Corporation or any of its affiliates to which such person may be a party, or of which such person may be a beneficiary, or (c) any proceeding with respect to which final judgment is rendered against such person for payment or an accounting of profits arising from the purchase or sale by such person of securities in violation of Section 16(b) of the Exchange Act, any similar successor statute, or similar provisions of state statutory law or common law.

SECTION 7.12 . No Retroactive Repeal or Modification . The right of any director or officer to indemnification and advancement of expenses under this Article is provided as a contract right in consideration of and as an inducement for such director’s or officer’s service as such, and shall fully vest at the time such officer or director first assumes his or her position with the Corporation. Any repeal or modification of the foregoing provisions granting indemnification or advancement rights shall be prospective only and shall not adversely affect any right or protection of a director or officer of the Corporation with respect to any acts or omissions of such director or officer occurring prior to such repeal or modification.

ARTICLE VIII
GENERAL PROVISIONS

SECTION 8.01 . Dividends . Subject to the requirements of the DGCL and the Certificate, the Board of Directors may from time to time declare at any regular or special meeting of the Board of Directors (or any action by consent in lieu thereof in accordance with Section 4.06), and the Corporation may pay, dividends on its outstanding shares.

SECTION 8.02 . Seal . The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form of as may be approved from time to time by the Board of Directors. Such seal may be an impression or stamp and may be used by the officers of the Corporation by causing it, or a facsimile thereof, to be impressed or affixed or in any other manner reproduced.

SECTION 8.03 . Waiver of Notice . Whenever any notice is required to be given under the provisions of the DGCL, the Certificate or these Bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice.

SECTION 8.04 . Fiscal Year . The fiscal year of the Corporation shall be determined by the Board of Directors.

SECTION 8.05 . Execution of Documents . The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any document or instrument on behalf of the Corporation, and such authority may be general or confined to specific instances. Any resolution of the Board of Directors authorizing the execution of documents on behalf of the Corporation and not specifying particular officers to do so shall be deemed to authorize such execution by the Chief Executive Officer, the Chief Operating Officer, the Chairman of the Board, the President, or any Vice President, or by any other officer if such execution is within the scope of the duties and authority of such other office. The Board of Directors may by resolution authorize such execution by means of one or more facsimile signatures.

SECTION 8.06 . Checks . All checks, drafts and other orders for the payment of money out of the funds of the Corporation, and all notes or other evidences of indebtedness of the Corporation, shall be signed on behalf of the Corporation in such manner as shall from time to time be determined (a) by resolution of the Board of Directors or of any committee thereof or (b) by any officer of the Corporation to whom power in respect of financial operations shall have been delegated by the Board of Directors or by any such committee thereof, or by these Bylaws.

SECTION 8.07 . Proxies in Respect of Stock or Other Securities of Other Corporations . The Board of Directors or any committee thereof shall designate the officers of the Corporation who shall have authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation or other entity, and to vote or consent in respect of such stock or securities; such designated officers may instruct the person or persons so appointed as to the manner of exercising such powers and rights; and such designated officers may execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal, or otherwise, such written proxies, powers of attorney or other instruments as they may deem necessary or proper in order that the Corporation may exercise its said powers and rights. In the absence of a contrary delegation under this Section 7.07, the Chairman, the President or any Vice President designated by the Chairman or the President shall have such authority.

SECTION 8.08 . Amendments . Except as otherwise provided herein, these Bylaws may be altered, amended or repealed and new Bylaws may be adopted (a) by the affirmative vote or consent of stockholders of record of outstanding shares representing at least a majority of the voting power of all the shares of capital stock of the Corporation then entitled to vote generally in the election of directors, voting together as a single class, provided that notice of the proposed alteration, amendment or repeal or of the proposed new Bylaw or Bylaws be included in the notice of any such meeting or waiver thereof, or (b) by the affirmative vote of not less than a majority of the directors then holding office at any meeting of the Board of Directors or by unanimous written consent of the Board of Directors, provided that notice of the proposed alteration, amendment or repeal or of the proposed new Bylaw or Bylaws be included in the notice of such meeting or waiver thereof. This Section 8.08 is subject to any contrary provisions and any provisions requiring a greater vote set forth in either the Certificate or these Bylaws.

SECTION 8.09 . Subject to Law and Certificate of Incorporation . All powers, duties and responsibilities provided for in these Bylaws, whether or not explicitly so qualified, are qualified by the provisions of the Certificate and applicable laws.

* * *

Exhibit 4.1

Exhibit 4.2

State of Delaware

Certificate of Merger of

NEW PW MERGER SUB, INC.

INTO

PRIMO WATER CORPORATION

Pursuant to Title 8, Section 251(c) of the Delaware General Corporation, the undersigned corporation executed the following Certificate of Merger:

FIRST: The name of the surviving corporation is Primo Water Corporation , and the name of the corporation being merged into this surviving corporation is NEW PW MERGER SUB, INC.

SECOND: The Agreement and Plan of Merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations.

THIRD: The name of the surviving corporation is Primo Water Corporation .

FOURTH: The Certificate of Incorporation of the surviving corporation shall be amended as follows:

ARTICLE I of the Certificate of Incorporation shall be deleted in its entirety and replaced with the following:

The name of this corporation is Primo Water Operations, Inc. (the “ Corporation ”).

The first sentence of ARTICLE IV, Section 4.1 of the Certificate of Incorporation shall be deleted in its entirety and replaced with the following:

ARTICLE V, Section 5.2(b) of the Certificate of Incorporation shall be deleted in its entirety and replaced with the following:

(b) RESERVED .

Exhibit 4.2

The Certificate of Incorporation shall be amended by adding ARTICLE IX immediately following ARTICLE VIII to read in its entirety as follows:

FIFTH: The merger is to become effective at 11:58 p.m. Eastern Time on May 18, 2017.

SIXTH: The Agreement and Plan of Merger is on file at 101 North Cherry Street, Suite 501, Winston-Salem, NC 27101, the place of business of the surviving corporation.

SEVENTH: A copy of the Agreement and Plan of Merger will be furnished by the surviving corporation on request, without cost, to any stockholder of the constituent corporations.

[signature page follows]

IN WITNESS WHEREOF , said surviving corporation has caused this certificate to be signed by an authorized officer, the 18th day of May, 2017.

	By:	/s/ David J. Mills
		Name: David J. Mills
		Title: Vice President

[Signature Page – Certificate of Merger]

Exhibit 10.1

COMPENSATION PLAN AND WARRANT ASSIGNMENT AGREEMENT

THIS COMPENSATION PLAN AND WARRANT ASSIGNMENT AGREEMENT (this “ Agreement ”) is entered into as of May 18, 2017, by and between Primo Water Corporation, a Delaware corporation (“ Operating Company ”) (which will be the surviving entity following the merger at the Effective Time, in which New PW Merger Sub, Inc., a Delaware corporation (“ Merger Sub ”) will be merged with and into Operating Company), and New PW Holdco, Inc., a Delaware corporation (“ New Holdings ”). All capitalized terms used in this Agreement and not defined herein have the respective meanings ascribed to them in the Agreement and Plan of Merger, dated as of May 18, 2017 (the “ Merger Agreement ”), by and among New Holdings, Operating Company and Merger Sub.

RECITALS

WHEREAS , pursuant to the Merger Agreement, at the Effective Time, (i) Merger Sub will be merged with and into Operating Company, with Operating Company continuing as the surviving entity in such merger and each outstanding share of capital stock of Operating Company (the “ Primo Stock ”) will be converted into one share of capital stock of New Holdings (“ New Holdings Stock ”) of the same class and with the same rights and privileges relative to New Holdings that such share had relative to Operating Company prior to the merger and (ii) New Holdings’ organizational and governing documents shall be substantially identical to those of Operating Company as in effect immediately prior to effecting the Reorganization and New Holdings shall assume all of the issued and outstanding equity awards and other equity instruments issued by Operating Company (the “ Reorganization ”);

WHEREAS , in connection with the Reorganization, (i) Operating Company will transfer and assign (including sponsorship of) to New Holdings, and New Holdings will assume (including sponsorship of), Operating Company’s equity compensation plans listed on Exhibit A and any subplans, appendices or addendums thereto (the “ Primo Equity Compensation Plans ”) and all obligations of Operating Company pursuant to each stock option to purchase a share of Primo Stock (a “ Primo Option ”), each right to acquire or vest in a share of Primo Stock (a “ Primo Stock Unit ”) and each other issued and outstanding award of an equity instrument for Primo Stock (such instruments “ Other Primo Equity Awards ”, and, collectively with the Primo Options and the Primo Stock Units, the “ Primo Equity Awards ” and each a “ Primo Equity Award ”) that is outstanding immediately prior to the Effective Time and (a) issued under any of the Primo Equity Compensation Plans and underlying grant agreements (each such grant agreement, a “ Primo Equity Award Grant Agreement ” and such grant agreements together with the Primo Equity Compensation Plans, the “ Primo Equity Compensation Plans and Agreements ”) or (b) granted by Primo outside of the Primo Equity Compensation Plans and Agreements pursuant to NASDAQ Listing Rule 5635(c) (“ Rule 5635(c) ”), all upon the terms and subject to the conditions set forth in the Merger Agreement and this Agreement; provided , however , that any term or condition set forth in the Primo Equity Compensation Plans and Agreements or Primo Equity Awards regarding vesting based on continued employment with Operating Company or other conditions shall, as of the Effective Time, be based on continued employment with New Holdings or any of its wholly-owned subsidiaries, including, without limitation, Operating Company, as applicable, or such other conditions), and (ii) each such Primo Equity Award shall be converted into (a) with respect to a Primo Option, an option to purchase a share of New Holdings Stock at an exercise price per share equal to the exercise price per share of Primo Stock subject to such Primo Option immediately prior to the Effective Time; (b) with respect to each Primo Stock Unit, a right to acquire or vest in a share of New Holdings Stock or (c) with respect to Other Primo Equity Awards, a right to acquire or vest in the same number and type of equity interests of New Holdings;

WHEREAS , in connection with the Reorganization, (i) Operating Company will also transfer and assign to New Holdings, and New Holdings will assume, all of the issued and outstanding warrants to purchase shares of Primo Stock (the “ Primo Warrants ”), one or more of which have been issued pursuant to one or more warrant agreements between Operating Company and the grantee thereto (the “ Primo Warrant Agreements ”); (ii) New Holdings shall assume all obligations of Operating Company pursuant to each Primo Warrant Agreement, including the obligation to issue one or more shares of New Holdings Stock to each such grantee upon the valid exercise of any Primo Warrant pursuant to the terms of the applicable Primo Warrant Agreement; and (iii) each such Primo Warrant shall be converted into a right to purchase a share of New Holdings Stock at an exercise price per share equal to the exercise price per share of Primo Stock subject to such Primo warrant immediately prior to the Effective Time pursuant to and in accordance with the terms of the applicable Primo Warrant Agreement;

WHEREAS , the Board of Directors of Operating Company has determined that it is in the best interest of Operating Company for Operating Company to enter into this Agreement and to assign to New Holdings the Primo Equity Compensation Plans and Agreements, the Primo Equity Awards and the Primo Warrants;

WHEREAS , the Board of Directors of New Holdings has determined that it is in the best interest of New Holdings for New Holdings to enter into this Agreement and to assume from Operating Company the Primo Equity Compensation Plans and Agreements, the Primo Equity Awards and the Primo Warrants; and

WHEREAS , the Board of Directors of Operating Company and the Board of Directors of New Holdings have determined that the Reorganization does not constitute a “change of control” under the Primo Equity Compensation Plans and Agreements, the Primo Equity Awards, the Primo Warrants and the Primo Warrant Agreements, as such terms may be used or defined therein;

NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Operating Company and New Holdings hereby agree as follows:

ARTICLE I

EQUITY PLANS AND AWARDS

1. Subject to and as of the Effective Time, Operating Company shall assign, and New Holdings will assume and will perform, from and after the Effective Time, all of the rights and obligations of Operating Company pursuant to the Primo Equity Compensation Plans and Agreements.

2. Subject to and as of the Effective Time:

a. New Holdings will assume each Primo Equity Award that is outstanding and unexercised, unvested and not yet paid or payable immediately prior to the Effective Time (i) issued under the Primo Equity Compensation Plans and Agreements or (ii) granted by Operating Company outside of the Primo Equity Compensation Plans and Agreements pursuant to and in accordance with Rule 5635(c); and

b. Each Primo Equity Award shall be converted into (i) with respect to each Primo Option, an option to purchase, on otherwise the same terms and conditions as were applicable under the applicable Primo Equity Compensation Plan and/or Primo Equity Award Grant Agreement (as modified herein) under which such Primo Option was issued, a share of New Holdings Stock with the same rights and privileges applicable to the share of Primo Stock subject to such Primo Option immediately prior to the Effective Time, at an exercise price per share equal to the exercise price per share of Primo Stock subject to such Primo Option immediately prior to the Effective Time; (ii) with respect to each Primo Stock Unit, a right to acquire or vest in, on otherwise the same terms and conditions as were applicable under the applicable Primo Equity Compensation Plan and/or Primo Equity Award Grant Agreement (as modified herein) under which such Primo Stock Unit was issued, a share of New Holdings Stock with the same rights and privileges applicable to the share of Primo Stock subject to such Primo Stock Unit immediately prior to the Effective Time; and (iii) with respect to each Other Primo Equity Award, a right to acquire or vest in, on otherwise the same terms and conditions as were applicable as were applicable under the applicable Primo Equity Compensation Plan and/or Primo Equity Award Grant Agreement (as modified herein) under which such Other Primo Equity Award was issued, a right to acquire or vest in the same number and type of equity interests of New Holdings; provided , however , that, in each case, any term or condition set forth in the Primo Equity Compensation Plans and Agreements or Primo Equity Awards regarding vesting based on continued employment with Operating Company or other conditions shall, as of the Effective Time, be based upon continued employment with New Holdings or any of its wholly-owned subsidiaries, including, without limitation, Operating Company, as applicable, or such other conditions.

3. All Primo Options shall be adjusted and converted in accordance with the requirements of Section 424 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.

4. At the Effective Time, the Primo Equity Awards, the Primo Equity Compensation Plans and Agreements and any provision of any other compensatory plan, contract, agreement or arrangement providing for the grant or issuance of Primo Stock shall, in each case, be automatically deemed to be amended, to the extent necessary or appropriate, to provide that references to Operating Company in such awards, documents and provisions shall be read to refer to New Holdings, and references to Primo Stock in such awards, documents and provisions shall be read to refer to New Holdings Stock. New Holdings and Operating Company agree to (a) prepare and execute all amendments to the Primo Equity Compensation Plans and Agreements, Primo Equity Awards and other documents necessary to effectuate New Holdings’ assumption of the Primo Equity Compensation Plans and Agreements and/or outstanding Primo Equity Awards based on continued employment with Operating Company shall be based on continued employment with New Holdings or any of its subsidiaries, as applicable; (b) provide notice of the assumption to holders of such Primo Equity Awards and (c) submit any required filings with the Securities and Exchange Commission (“ SEC ”) or Nasdaq Global Market in connection with the same.

5. On or prior to the Effective Time, New Holdings shall reserve a sufficient number of shares of New Holdings Stock to provide for the issuance of New Holdings Stock to satisfy New Holdings’ obligations under this Agreement with respect to the Primo Equity Compensation Plans and Agreements and Primo Equity Awards.

6. Operating Company and New Holdings agree that the Reorganization does not constitute a “change of control” under the Primo Equity Compensation Plans and Agreements or the Primo Equity Awards, as such term is defined or used therein.

ARTICLE II

WARRANTS AND WARRANT AGREEMENTS

2. Subject to and as of the Effective Time, (a) New Holdings will assume each Primo Warrant that is outstanding and unexercised immediately prior to the Effective Time and (b) each such Primo Warrant shall be converted into a right to acquire, pursuant to and in accordance with the vesting and exercise provisions in each applicable Primo Warrant Agreement, on otherwise the same terms and conditions as were applicable under the applicable Primo Warrant Agreement (as modified herein) a share of New Holdings Stock with the same rights and privileges applicable to the share of Primo Stock subject to such Primo Warrant immediately prior to the Effective Time, at an exercise price per share equal to the exercise price per share of Primo Stock subject to such Primo Warrant immediately prior to the Effective Time.

3. At the Effective Time, the Primo Warrants and the Primo Warrant Agreements shall each be automatically deemed to be amended, to the extent necessary or appropriate, to provide that references to Operating Company in such Primo Warrants and Primo Warrant Agreements shall be read to refer to New Holdings, and references to Primo Stock in such Primo Warrants and Primo Warrant Agreements shall be read to refer to New Holdings Stock. New Holdings and Primo agree to (a) prepare and execute all amendments to the Primo Warrants, Primo Warrant Agreements and other documents necessary to effectuate New Holdings’ assumption of the Primo warrants and Primo Warrant Agreements; (b) provide notice of the assumption to holders of such Primo Warrants and (c) submit any required filings with the SEC or Nasdaq Global Market in connection with the same.

4. On or prior to the Effective Time, New Holdings shall reserve sufficient shares of New Holdings Stock to provide for the issuance of New Holdings Stock to satisfy New Holdings’ obligations under this Agreement with respect to the Primo Warrants and Primo Warrant Agreements.

5. Operating Company and New Holdings agree that the Reorganization does not constitute a “change of control” as such term may be defined or used in any Primo Warrant or Primo Warrant Agreement.

ARTICLE III

MISCELLANEOUS

1. Each of Operating Company and New Holdings shall, from time to time and at all times hereafter, upon every reasonable request to do so by any other party hereto, make, do, execute and deliver, or cause to be made, done, executed and delivered, all such further acts, deeds, assurances and things as may be required or necessary in order to further implement and carry out the intent and purpose of this Agreement.

2. Any term or provision hereof may be amended, terminated or waived (either generally or in a particular instance and either retroactively or prospectively) with the written consent of Operating Company and New Holdings (or their respective successors or assigns).

3. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be deemed prohibited or invalid under such applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, and such prohibition or invalidity shall not invalidate the remainder of such provision or the other provisions of this Agreement.

4. This Agreement may be executed in multiple counterparts, each of which shall constitute an original but all of which shall constitute but one and the same instrument. One or more counterparts of this Agreement may be delivered via facsimile, electronic mail (including PDF) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

5. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to any provisions regarding conflicts of law that would cause the application of the laws of any other jurisdiction.

6. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the respective successors and permitted assignees of the parties hereto.

[Signature Page Follows]

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

	OPERATING COMPANY:

	PRIMO WATER CORPORATION

	By:	/s/ David J. Mills
	Name:	David J. Mills
	Title:	Vice President, Finance

	NEW HOLDINGS:

	NEW PW HOLDCO, INC.

	By:	/s/ David J. Mills
	Name:	David J. Mills
	Title:	Authorized Signatory

[Compensation Plan and Warrant Assignment Agreement]

Exhibit A

Primo Equity Compensation Plans

Primo Water Corporation 2004 Stock Option Plan, as amended

Primo Water Corporation Amended and Restated 2010 Omnibus Long-Term Incentive Plan, as amended

Primo Water Corporation 2010 Employee Stock Purchase Plan, as amended

Delaware		001-34850		82-1161432
(State or other jurisdiction of incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

Not Applicable
(Former name or former address, if changed since last report)