United States securities and exchange commission logo
May 19, 2023
Russel Leaf
Counsel to the Participants
Willkie Farr & Gllagher LLP
787 Seventh Avenu
New York, NY 10019-6099
Re: Cano Health, Inc.
PREC14A Preliminary
Proxy Statement on Schedule 14A
Filed on May 10,
2023 by Barry Sternlicht et al.
File No. 001-39289
Dear Russel Leaf:
We have reviewed the above-captioned filing, and have the
following comments. In some
of our comments, we may ask you to provide us with information so we may
better understand
your disclosure.
Please respond to these comments by providing the requested
information and/or
amending the filing. If you do not believe our comments apply to your
facts and circumstances,
please advise us why in a response.
After reviewing any
response to these comments, we may have additional comments.
PREC14A - Preliminary Proxy Statement on Schedule 14A
General
1. Under Rule 14a-3(a) of
Regulation 14A, no solicitation shall be made unless each person
solicited is
concurrently furnished or has previously been furnished with a proxy
statement as defined in
Rule 14a-1(g) (or functional equivalent thereof). The Former
Directors, as defined
in the above-captioned proxy statement, have made Schedule 13D
submissions and/or
issued associated letters directed to shareholders' attention such as
those dated April 10,
2023, April 17, 2023, and April 26, 2023. Despite the inclusion of
statements within these
documents that potentially could be interpreted as being
reasonably calculated
to result in the procurement, withholding or revocation of a proxy,
the following
communications were not treated as soliciting material furnished to
shareholders in
reliance on Rule 14a-12:
Turning around
Cano begins with putting the right people in the right positions. First
Russel Leaf
FirstName
Willkie FarrLastNameRussel
& Gllagher LLPLeaf
Comapany
May NameWillkie Farr & Gllagher LLP
19, 2023
May 19,
Page 2 2023 Page 2
FirstName LastName
and foremost, it is crystal clear to us that Cano needs to replace Dr.
Hernandez.
A second priority of ours is helping to reconstitute the Board.
[The former directors are] prepared to promptly submit a notice
seeking, among other
things, to nominate high-integrity and well-qualified directors at the
Annual Meeting and
bring forth other proposals, including the removal of one or more
directors.
[The former directors reiterate their] Demand that the Board
Respect the Wishes of
Shareholders by Making Necessary Leadership Changes or Reopening the
Window to
Nominate Director Candidates and Submit Proposals at 2023 Annual
Meeting.
Please provide us with the legal analysis upon which the Former
Directors relied to
ostensibly conclude that such communications were not solicitations as
defined in Rule
14a-1(l)(1)(iii) of Regulation 14A.
2. The letter to stockholders indicates that the participants "have
decided to launch a
'withhold campaign' to ensure that, regardless of our litigation,
stockholders have an
opportunity to have their voices heard and send a clear message to
Cano s Board and
management at this year s Annual Meeting." To the extent that the
legal effect of the
authority being withheld is not measurable or reportable, please
revise to remove the
implication that shareholders' "voices" will still be "heard" when in
fact execution of the
participants' proxy card will not change the outcome of the vote or
otherwise produce a
reportable statistic. Notwithstanding the participants' reliance on
Rule 14a-5(c), please
advise us, with a view toward revised disclosure, whether the
participants have described
the legal effect of withholding authority and if it will be "counted"
within the meaning of
that term as used within Item 21(b) of Schedule 14A.
3. The letter to shareholders includes the anticipated date by which the
proxy statement and
form of proxy will be distributed to shareholders. The proxy
statement, as defined in Rule
14a-1(g) and codified at Rule 14a-101, does not reference a letter to
shareholders. As
required by both Rule 14a-6(d) and Item 1(b) of Schedule 14A, please
place the date upon
which the proxy statement will be mailed to shareholders on the first
page of the proxy
statement as defined under Rule 14a-1(g).
4. Please advise us why the form of proxy has not specified whether each
of the matters
upon which shareholders are being asked to vote has been proposed by
the registrant.
See Rule 14a-4(a)(3).
5. Please advise us why the form of proxy does not state whether or not
any matter is related
to or conditioned on the approval of other matters. See Rule
14a-4(a)(3).
We remind you that the filing persons are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of
action by the
staff. Please direct any questions to Nicholas Panos at 202-551-3266.
Russel Leaf
Willkie Farr & Gllagher LLP
May 19, 2023
Page 3
Sincerely,
FirstName LastNameRussel Leaf
Division of Corporation Finance
Comapany NameWillkie Farr & Gllagher LLP
Office of Mergers & Acquisitions
May 19, 2023 Page 3
cc: Tariq Mundiya
FirstName LastName