Attached files
| file | filename |
|---|---|
| EX-4.1 - Vitacost.com, Inc. | v178421_ex4-1.htm |
| EX-3.1 - Vitacost.com, Inc. | v178421_ex3-1.htm |
| EX-10.2 - Vitacost.com, Inc. | v178421_ex10-2.htm |
| EX-99.1 - Vitacost.com, Inc. | v178421_ex99-1.htm |
| EX-10.1 - Vitacost.com, Inc. | v178421_ex10-1.htm |
| EX-10.3 - Vitacost.com, Inc. | v178421_ex10-3.htm |
| EX-10.4 - Vitacost.com, Inc. | v178421_ex10-4.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 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):
|
March 24,
2010
|
Vitacost.com,
Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware
(State or
Other Jurisdiction of Incorporation)
|
001-34468
|
37-1333024
|
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
|
5400
Broken Sound Blvd. - NW, Suite 500
|
|
|
Boca Raton, Florida
|
33487-3521
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
(561)
982-4180
(Registrant’s
Telephone Number, Including Area Code)
(Former
Name or Former Address, if Changed Since Last Report)
Copies
to:
|
Ira
Kerker
Chief
Executive Officer
5400
Broken Sound Blvd. - NW, Suite 500
Boca
Raton, Florida 33487-3521
(561)
982-4180
|
Clifford
E. Neimeth, Esq.
Greenberg
Traurig, LLP
The
MetLife Building
200
Park Avenue
New
York, NY 10166
(212)
801-9200
|
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 (see General
Instruction A.2. below):
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
|
Item
1.01.
|
Entry
Into a Material Definitive
Agreement.
|
On March
24, 2010, the Board of Directors (the “Board”) of
Vitacost.com, Inc., a Delaware corporation (the “Company”), authorized
and declared a dividend distribution of one preferred stock purchase right (a
“Right”) for
each outstanding share of the Company’s common stock, $0.00001 par value (the
“Common
Stock”), to stockholders of record at the close of business on March 24,
2010 (the “Record
Date”). Each Right entitles the registered holder to purchase from the
Company one one-thousandth of a share of Series A Junior Participating Preferred
Stock, $0.00001 par value, of the Company (the “Preferred Stock”), at
a price of $45.00 per one one-thousandth share of Preferred Stock (the “Purchase Price”),
subject to adjustment. The definitive terms of the Rights are set
forth in a Rights Agreement, dated March 24, 2010 (the “Rights Agreement”),
between the Company and Mellon Investor Services LLC, as Rights Agent (the
“Rights
Agent”).
Distribution
Date; Acquiring Person
The
Rights are not exercisable until the “Distribution Date.” Under the
Rights Agreement, the “Distribution Date”
will occur after the earlier to occur of the following events: (i) the close of
business on the 10th day
after the date of the first public announcement that a person or group of
affiliated or associated persons (subject to certain exceptions discussed below,
an “Acquiring
Person”) has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding Common Stock (which includes Common
Stock referenced in derivative transactions and securities), or such earlier
date as a majority of the Board shall become aware of such acquisition of Common
Stock (the “Stock
Acquisition Date”) or (ii) the close of business on the 10th
business day, or such specified or unspecified later date on or after the Record
Date as may be determined by action of the Board, following the commencement of,
or announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 15% or more of the outstanding Common Stock.
The
Rights Agreement provides that the following shall not be deemed an “Acquiring
Person” for purposes of the Rights Agreement: (i) the Company or any subsidiary
of the Company, in each case including, without limitation, in its fiduciary
capacity, any employee benefit or compensation plan of the Company or of any
subsidiary of the Company, or any person or entity holding shares of Common
Stock for or pursuant to the terms of any such plan or for the purpose of
funding any such plan or funding other employee benefits for employees of the
Company or any subsidiary of the Company (an “Exempt Person”); (ii)
any person who, as of the date of the Rights Agreement, already is the
beneficial owner of 15% or more of the shares of Common Stock then outstanding,
provided that if such person thereafter becomes the beneficial owner of
additional shares of Common Stock representing 1% or more of the shares of
Common Stock then outstanding without the prior written consent of the Company
(subject to certain exceptions) and then beneficially owns more than 15% of the
Common Stock then outstanding, such Person will no longer be exempted from the
definition of Acquiring Person; and (iii) a person or group of affiliated or
associated persons who inadvertently have become the beneficial owner of 15% or
more of the outstanding shares of Common Stock of the Company, or have become
such solely as a result of a reduction in the outstanding shares of Common Stock
of the Company in transactions affected by the Company, provided that if such
person or group of affiliated or associated persons shall become the beneficial
owner of one percent (1%) or more additional shares of Common Stock of the
Company without the prior written consent of the Company (subject to certain
exceptions) and thereafter beneficially owns more than 15% of the Common Stock
of the Company then outstanding, then such person or group of affiliated or
associated persons will no longer be exempted from the definition of, and shall
be deemed an, Acquiring Person.
Evidence
of Rights; Transfer and Detachment; Rights Certificates
Until the
Distribution Date or the earlier redemption, expiration or termination of the
Rights, the Rights associated with the Common Stock shall be evidenced by the
Common Stock certificates alone and the registered holders of Common Stock also
shall be the registered holders of the associated (corresponding) Rights, and
the surrender for transfer of any of such certificates also shall constitute the
transfer of the Rights associated with the Common Stock represented by such
certificate. As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights (“Right Certificates”)
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and such separate Right Certificates alone
will evidence the Rights. Rights shall be issued in respect of all
shares of Common Stock that are issued (whether originally issued or issued from
the Company’s treasury) after the Record Date but prior to the earlier of the
Distribution Date or the Expiration Date (as defined below).
Exercisability;
Expiration; Adjustments
The
Rights are not exercisable until the Distribution Date and will expire on the
earliest of (i) the close of business on the Final Expiration Date, (ii) the
time at which the Rights are redeemed, or (iii) the time at which the Board
mandates the exchange of the Rights (the “Expiration
Date”). The “Final Expiration
Date” is the earlier of (i) the close of business on March 24, 2015 or
(ii) the thirtieth (30th) day
following the Company’s 2012 annual meeting if the approval of the Company’s
stockholders does not occur at such meeting.
The
Purchase Price payable, and the number of shares of Preferred Stock or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the shares of
Preferred Stock; (ii) upon the grant to holders of the Preferred Stock of
certain rights or warrants to subscribe for or purchase Preferred Stock at a
price, or securities convertible into Preferred Stock with a conversion price,
less than the then-current market price of the Preferred Stock; or (iii) upon
the distribution to holders of the Preferred Stock of evidences of indebtedness,
assets, cash or stock (excluding regular cash dividends out of the earnings or
retained earnings of the Company and dividends payable in shares of Preferred
Stock) or of subscription rights, options or warrants (other than those referred
to above).
The
number of outstanding Rights and the number of one one-thousandths of a share of
Preferred Stock issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Stock or a stock dividend
on the Common Stock payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date.
Subject
to certain exceptions, no adjustment in the Purchase Price will be required
until cumulative adjustments require an adjustment of at least 1% in such
price. At the Company’s option, cash (based on the market price on
the last trading date prior to the date of the exercise) may be paid instead of
issuing fractional shares of any securities (other than fractional shares of
Preferred Stock in integral multiples of one one-thousandth of a
share).
Preferred
Stock
Shares of
Preferred Stock issued upon exercise of the Rights would not be redeemable. Each
share of Preferred Stock, if so issued upon exercise, would be entitled, when,
as and if declared, to a minimum preferential quarterly dividend payment of the
greater of (a) $1.00 per share and (b) an amount equal to 1,000 times the
dividend declared and payable in respect of one whole share of Common Stock. In
the event of any liquidation, dissolution or winding up of the Company, the
holders of the Preferred Stock would be entitled to a minimum preferential
payment equal to $1,000 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon. Each issued and outstanding
share of Preferred Stock would have 1,000 votes, voting together with the Common
Stock. Finally, in the event of any merger, consolidation or other
transaction in which outstanding shares of Common Stock were converted or
exchanged, each share of Preferred Stock would be entitled to receive 1,000
times the amount received in respect of one whole share of Common Stock. The
rights of the Preferred Stock as to dividends, liquidation and voting, and in
the event of mergers and consolidations, are protected by customary
anti-dilution provisions.
Because
of the nature of the Preferred Stock’s dividend, liquidation and voting rights,
the value of one one-thousandth of a share of Preferred Stock purchasable upon
exercise of each Right should approximate the value of one share of Common
Stock.
“Flip-In”
Events
If, after
the date of the Rights Agreement, (i) any person becomes an Acquiring Person,
(ii) any Acquiring Person engages in certain “self-dealing” transactions with
the Company (described below) or (iii) while there exists an Acquiring Person,
an event occurs which results in such Acquiring Person’s ownership interest in
any class of securities of the Company being increased by more than 1% (e.g., a
reverse stock split), in each case which would not otherwise trigger a
“flip-over” event as described below, each holder of a Right would thereafter
have the right to receive, upon exercise of the Right, that number of shares of
Common Stock (or, in certain circumstances, cash, property or other securities
of the Company) which equals the Purchase Price divided by 50% of the “current
market price” (as defined in the Rights Agreement) of the Common Stock at the
date of the occurrence of the event. Notwithstanding the foregoing,
following the occurrence of any of such events, any Rights beneficially owned by
any Acquiring Person would immediately become null and void.
“Self-dealing”
transactions are defined to include (i) a consolidation, merger or other
combination of any Acquiring Person with the Company or any subsidiary of the
Company in which the Company or such subsidiary is the surviving corporation and
the Common Stock of the Company remains outstanding and no shares are changed
into or exchanged for stock or other securities or cash or any other property,
(ii) the transfer of assets or property to the Company or any subsidiary of the
Company in exchange (in whole or in part) for securities of the Company or any
of its subsidiaries, (iii) the acquisition of securities of the Company (other
than in a pro rata distribution payable ratably to all stockholders), (iv) the
sale, purchase, transfer, distribution, lease, mortgage, pledge or acquisition
of assets by the Acquiring Person to, from or with the Company, other than on an
arm’s length basis, (v) the receipt of any compensation by an Acquiring Person
for services (other than for employment as a regular full-time or part-time
employee or director on a basis consistent with the Company’s past practice),
(vi) the receipt of the benefit of a loan or provision of other financial
assistance (except proportionately as a stockholder) by an Acquiring Person, or
(vii) the licensing, sale or other transfer of proprietary technology or
know-how from the Company to the Acquiring Person on terms not approved by the
Board.
“Flip-Over”
Events
If, after
the Stock Acquisition Date, the Company is acquired in a merger or other
business combination in which the Common Stock is exchanged or converted or in
which the Company is not the surviving corporation, or 50% or more of the
Company’s assets or earning power are sold, each holder of a Right thereafter
shall have the right to purchase, upon payment of the then current Purchase
Price, such number of shares of common stock of the acquiring company which
equals the Purchase Price divided by 50% of the “current market price” (as
defined in the Rights Agreement) of such common stock at the date of the
occurrence of the event. Notwithstanding the foregoing, following the occurrence
of any of such events, any Rights beneficially owned by any Acquiring Person
would immediately become null and void.
Exchange
Option
The
Company may, at its option, by majority vote of the Board, at any time after any
person becomes an Acquiring Person, mandate the exchange of all or part of the
then outstanding and exercisable Rights for shares of Common Stock at an
exchange ratio of one share of Common Stock per Right (subject to
adjustment). The Board, however, may not effect an exchange at any
time after any person (other than an Exempt Person), together with all
affiliates of such person, becomes the beneficial owner of 50% or more of the
Common Stock then outstanding. Immediately upon the action of the
Board ordering the exchange of any Rights and without any further action and
without any notice, the right to exercise such Rights will terminate and the
only right thereafter of a holder of such Rights will be to receive that number
of shares of Common Stock equal to the number of such Rights held by the
holder.
Redemption
The Board
may, at its option, at any time prior to the earlier of (i) the first occurrence
of a “flip-in” event and (ii) the Final Expiration Date, redeem the Rights at a
redemption price of $0.0001 per Right (the “Redemption Price”),
payable, at the option of the Company, in cash, shares of Common Stock or such
other form of consideration as the Board shall determine. Immediately
upon such redemption, the right to exercise the Rights will terminate, and the
holders of Rights will become entitled only to receive the Redemption
Price.
Amendment
Any of
the provisions of the Rights Agreement may be amended by the Board prior to the
date any person or group becomes an Acquiring Person without the approval of any
holders of the Rights. After such date, the Board may amend the
Rights Agreement to cure any ambiguity, to correct or supplement any provision
which may be defective or inconsistent with any other provisions, to make
changes which do not adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person), or to shorten or lengthen any
time period under the Rights Agreement, provided that no amendment to adjust the
time period governing redemption shall be made at such time as the Rights are
not redeemable.
Rights
of Holders; Tax Matters
The
Rights themselves do not entitle the holder thereof to any rights as a
stockholder of the Company, including, without limitation, the right to vote or
receive dividends. While the distribution of the Rights will not be
taxable to stockholders or to the Company, stockholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company as set forth above.
Further
Information
The
Rights Agreement is not intended to prevent a takeover or sale of control of the
Company, but rather to encourage anyone seeking to acquire control of the
Company to negotiate with the Board prior to attempting such a
transaction. The Rights are designed to assure that all of the
Company’s stockholders receive fair and equal treatment in the event of any
proposed takeover of the Company and to guard against partial tender offers,
open market accumulations and other abusive tactics to gain control of the
Company without paying all stockholders a control premium. The Rights
will cause substantial dilution to a person or group that acquires 15% or more
of the Company’s Common Stock on terms not approved by the Board (with certain
limited exceptions). The Rights should not interfere with any merger
or other business combination approved by the Board at any time prior to the
first date that a person or group has become an Acquiring Person.
The
foregoing summary of the Rights Agreement and the Rights does not purport to be
complete and is subject to, and qualified in its entirety by, the full text of
the Certificate of Designation with respect to the Preferred Stock (together
with each of the exhibits thereto), the Rights Agreement (together with each of
the exhibits thereto), and the press release issued by the Company announcing
the foregoing, copies of which are attached hereto as Exhibits 3.1, 4.1 and
99.1, respectively, and are incorporated herein in its entirety by
reference.
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Item
3.03.
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Material
Modification to the Rights of Security
Holders.
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The
information set forth in Item 1.01 above is incorporated into this
Item 3.03 in its entirety by reference.
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Item
5.02.
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
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(e)
On March 22, 2010,
the Company entered into Second Amendments to the Employment, Non-Competition
and Proprietary Rights Agreement with each of Ira P. Kerker, its Chief Executive
Officer (the “Kerker
Amendment”), Richard P. Smith, its Chief Financial Officer and Chief
Accounting Officer (the “Smith Amendment”),
Sonya L. Lambert (the “Lambert Amendment”)
and Robert D. Hirsch (the “Hirsch Amendment,”
and together with the Kerker Amendment, the Smith Amendment and the Lambert
Amendment, the “Amendments”). The
Amendments amend the respective Employment, Non-Competition and Proprietary
Rights Agreement between the Company and each of Mr. Kerker (the “Kerker Agreement”),
Mr. Smith (the “Smith
Agreement”), Ms. Lambert (the “Lambert Agreement”)
and Mr. Hirsch (the “Hirsch Agreement”,
and together with the Kerker Agreement, the Smith Agreement and the Lambert
Agreement, as each have been previously amended, the “Agreements”).
Pursuant
to the Kerker Amendment, the employment term in the Kerker Agreement was amended
to provide for a three year term for Mr. Kerker commencing on March 15, 2010,
renewable upon mutual agreement by the Company and Mr.
Kerker. Pursuant to the Smith Amendment and the Lambert Amendment,
the employment term in each of their respective Agreements was amended to
provide for a two year term commencing on March 15, 2010, renewable upon mutual
agreement by the Company and the respective party. In addition, the
Kerker Amendment and Smith Amendment provide that the respective compensation of
Mr. Kerker and Mr. Smith will be reviewed by the Board on an annual basis (based
on the original anniversary date of the effective date of their respective
Agreements, January 29, 2007) and may be increased (but not decreased), as
determined by the Board of Directors.
The
Kerker Amendment and the Smith Amendment further amended each of the Kerker
Agreement and Smith Agreement to provide, among other things, that in the event
of a termination by the Company of Mr. Kerker or Mr. Smith “Without Cause” (as
defined in the respective Agreements) or by Mr. Kerker or Mr. Smith for “Good
Reason” (as defined in the respective Amendments), then, in addition to any
compensation and benefits accrued through such termination, Mr. Kerker and Mr.
Smith, as the case may be, are entitled to receive (i) a severance payment equal
to the greater of (a) 2.5 times the sum of his then current base salary and the
average of the prior two years’ annual bonus, or (b) the amount he would be
entitled to receive (e.g. base salary, bonus, vacation pay) for the remainder of
the term as if he remained employed until the last day of such term, payable in
24 equal monthly payments and (ii) 18 months of company-paid continuation
medical benefits. The Lambert Amendment further amended the Lambert
Agreement to provide that in the event of a termination by the Company of Ms.
Lambert “Without Cause” (as defined in the Lambert Agreement), then, in addition
to any compensation and benefits accrued through such termination, Ms. Lambert
is entitled to (i) a severance payment equal to the greater of (a) two times the
sum of her then current base salary and the average of her prior two years’
annual bonus, or (b) the amount she would be entitled to receive (e.g. base
salary, bonus, vacation pay) for the remainder of the term as if she remained
employed until the last day of such term, payable in 24 equal monthly payments
and (ii) 18 months of company-paid continuation medical benefits. The
Hirsch Amendment further amended the Hirsch Agreement to provide that in the
event of a termination by the Company of Mr. Hirsch “Without Cause” (as defined
in the Hirsch Agreement), then, in addition to any compensation and benefits
accrued through such termination, Mr. Hirsch is entitled to (i) a severance
payment equal to the greater of (a) the sum of his then current base salary and
the average of his prior two years’ annual bonus, or (b) the amount he would be
entitled to receive (e.g. base salary, bonus, vacation pay) for the remainder of
the term as if he remained employed until the last day of such term, payable in
12 equal monthly payments and (ii) 18 months of company-paid continuation
medical benefits.
The
Amendments further amended the Agreements to provide that if the employment of
Mr. Kerker, Mr. Smith, Ms. Lambert or Mr. Hirsch is terminated following a
Change of Control (as defined in the respective Amendment), either by the
Company Without Cause (as defined in the respective Agreement) or by the
executive for Good Reason (as defined in the respective Amendment), then the
executive is entitled to the following severance terms (in addition to any
compensation and benefits accrued through such termination (1) for Mr. Kerker,
if terminated Without Cause or for Good Reason within two years after a Change
in Control, a lump sum payment equal to 2.99 times his then current base salary
and 2.99 times the higher of (i) the average of the prior two years’ annual
bonus and (ii) last year’s bonus; (2) for Mr. Smith, if terminated Without Cause
or for Good Reason within 18 months after a Change in Control, a lump sum
payment equal to 2.5 times his then current base salary and 2.5 times the higher
of (i) the average of the prior two years’ annual bonus and (ii) last year’s
bonus; (3) for Ms. Lambert, if terminated Without Cause or for Good Reason
within 18 months after Change in Control, a lump sum payment equal to two times
her then current base salary and two times the higher of (i) the average of the
prior two years’ annual bonus and (ii) last year’s bonus; and (4) for Mr.
Hirsch, if terminated Without Cause or for Good Reason within 12 months after a
Change in Control, a lump sum payment equal to his then current base salary and
last year’s bonus.
Pursuant
to the Amendments, each of the Agreements have also been amended to (a) comply
with various requirements of Section 409A of the Internal Revenue Code (the
“Code”) and (b)
reduce any payments to the extent that the failure to do so would result in any
payment or distribution being non-deductible by the Company for federal income
tax purposes because of Section 280G of the Code.
The
foregoing summary of the Amendments does not purport to be complete and is
subject to, and qualified in its entirety by, the full text of the Amendments,
copies of which are attached hereto as Exhibits 10.1, 10.2, 10.3 and 10.4,
respectively, and are incorporated herein in its entirety by
reference.
|
Item
5.03.
|
Amendments
to Articles of Incorporation or By-Laws; Change in Fiscal
Year.
|
On March
24, 2010, in connection with the approval and adoption of the Rights Agreement,
the Board approved and adopted a Certificate of Designation of Series A Junior
Participating Preferred Stock (the “Certificate of
Designation”), setting forth the rights, powers and preferences of the
Preferred Stock. The Company filed the Certificate of Designation
with the Secretary of State of the State of Delaware on March 24,
2010.
See
Item 1.01 above for a summary of the rights, powers and preferences of the
Preferred Stock, which summary is incorporated into this Item 5.03 in its
entirety by reference. The full description of rights, powers and preferences of
the Preferred Stock is set forth in the Certificate of Designation, a copy of
which is attached hereto as Exhibit 3.1 and the form of which is included as
Exhibit A to the Rights Agreement attached hereto as Exhibit 4.1. The
full text of the Certificate of Designation is incorporated into this Item 5.03
in its entirety by reference.
Item
8.01. Other
Events.
On March 24, 2010, the Company issued a
press release announcing its entry into the Rights Agreements referred to in
Item 1.01 above. A copy of the press release is attached hereto as
Exhibit 99.1 and is incorporated into this Item 8.01 in its entirety by
reference.
Item
9.01. Financial
Statements and Exhibits.
(d) Exhibits.
|
Exhibit No.
|
Description
|
|
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3.1
|
Certificate
of Designation with respect to the Series A Junior Participating Preferred
Stock, $0.00001 par value, of the Company.
|
|
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4.1
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Rights
Agreement dated March 24, 2010, between the Company and Mellon Investor
Services LLC, as Rights Agent.
|
|
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10.1
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Second
Amendment to Employment, Non-Competition and Proprietary Rights Agreement
between the Company and Ira P. Kerker dated as of March 22,
2010.
|
|
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10.2
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Second
Amendment to Employment, Non-Competition and Proprietary Rights Agreement
between the Company and Richard P. Smith dated as of March 22,
2010.
|
|
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10.3
|
Second
Amendment to Employment, Non-Competition and Proprietary Rights Agreement
between the Company and Sonya L. Lambert dated as of March 22,
2010.
|
|
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10.4
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Second
Amendment to Employment, Non-Competition and Proprietary Rights Agreement
between the Company and Robert D. Hirsch dated as of March 22,
2010.
|
|
|
99.1
|
Press
Release of the Company, dated March 24,
2010.
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
| VITACOST.COM, INC. | ||
|
Date: March
24, 2010
|
||
|
By:
|
/s/ Richard P. Smith
|
|
|
Name:
|
Richard
P. Smith
|
|
|
Title:
|
Chief
Financial
Officer
|
|
EXHIBIT
INDEX
|
Exhibit No.
|
Description
|
|
|
3.1
|
Certificate
of Designation with respect to the Series A Junior Participating Preferred
Stock, $0.00001 par value, of the Company.
|
|
|
4.1
|
Rights
Agreement dated March 24, 2010, between the Company and Mellon Investor
Services LLC, as Rights Agent.
|
|
|
10.1
|
Second
Amendment to Employment, Non-Competition and Proprietary Rights Agreement
between the Company and Ira P. Kerker dated as of March 22,
2010.
|
|
|
10.2
|
Second
Amendment to Employment, Non-Competition and Proprietary Rights Agreement
between the Company and Richard P. Smith dated as of March 22,
2010.
|
|
|
10.3
|
Second
Amendment to Employment, Non-Competition and Proprietary Rights Agreement
between the Company and Sonya L. Lambert dated as of March 22,
2010.
|
|
|
10.4
|
Second
Amendment to Employment, Non-Competition and Proprietary Rights Agreement
between the Company and Robert D. Hirsch dated as of March 22,
2010.
|
|
|
99.1
|
Press
Release of the Company, dated March 24,
2010.
|