Attached files
| file | filename |
|---|---|
| 8-K - Vitacost.com, Inc. | v178421_8k.htm |
| EX-4.1 - Vitacost.com, Inc. | v178421_ex4-1.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 |
EXHIBIT
3.1
CERTIFICATE
OF DESIGNATION
OF
SERIES A
JUNIOR PARTICIPATING PREFERRED STOCK
OF
VITACOST.COM,
INC.
Pursuant
to Section 151 of the
General
Corporation Law of the State of Delaware
VITACOST.COM,
INC., a corporation organized and existing under the General Corporation Law of
the State of Delaware (the “Corporation”), hereby
certifies that the following resolution was duly adopted by the Board of
Directors of the Corporation as required by Section 151 of the General
Corporation Law of the State of Delaware:
“NOW,
THEREFORE, BE IT RESOLVED, that pursuant to the authority expressly granted to
and vested in the Board of Directors of this Corporation (the “Board of Directors”),
in accordance with the provisions of the certificate of incorporation of the
Corporation, the Board of Directors hereby creates out of the authorized but
unissued preferred stock, par value $0.00001 per share, of the Corporation (the
“Preferred
Stock”), a new series of Preferred Stock, and hereby states the
designation and the number of shares of such series and fixes the relative,
participating, optional or other special rights, preferences, privileges,
powers, restrictions, qualifications and limitations thereof as
follows:
Series A Junior Participating Preferred
Stock:
Section
1. Designation and
Amount. There shall be a series of Preferred Stock that shall
be designated as “Series A Junior Participating Preferred Stock” and the number
of shares constituting such series shall be One Hundred Thousand
(100,000). Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, however, that no decrease shall
reduce the number of shares of Series A Junior Participating Preferred Stock to
a number less than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series A Junior Participating Preferred
Stock.
Section
2. Dividends and
Distributions.
(A)
Subject to the rights of the holders of any shares of any class or series
of capital stock of the Corporation ranking prior and superior to the shares of
Series A Junior Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred Stock, in
preference to the holders of Common Stock, $0.00001 par value per share (the
“Common
Stock”), of the Corporation, and of any class or series of capital stock
of the Corporation ranking junior to the Series A Junior Participating Preferred
Stock with respect to dividends, shall be entitled to receive, when, as and if
declared by the Board of Directors, out of funds of the Corporation legally
available for the payment of dividends, quarterly dividends payable in cash on
March 31, June 30, September 30 and December 31 in each year (each such date
being referred to herein as a “Quarterly Dividend Payment
Date”), commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series A Junior
Participating Preferred Stock, in an amount per share (rounded to the nearest
whole cent) equal to the greater of (a) $1.00 or (b) subject to the provision
for adjustment hereinafter set forth, 1,000 times the aggregate per share amount
of all cash dividends, and 1,000 times the aggregate per share amount (payable
in kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series A Junior Participating Preferred
Stock. In the event the Corporation shall at any time after the date
of filing of this Certificate of Designation declare or pay any dividend on
Common Stock payable in shares of Common Stock or effect a subdivision,
combination or consolidation of the outstanding Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount to which holders of shares of Series A Junior Participating
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The
Corporation shall declare a dividend or distribution on the Series A Junior
Participating Preferred Stock as provided in paragraph (A) above immediately
after it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock) and the Corporation shall pay such
dividend or distribution on the Series A Junior Participating Preferred Stock
before the dividend or distribution declared on the Common Stock is paid or set
apart; provided, however, that, in the event that no dividend or distribution
shall have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1.00 per share on the Series A Junior Participating
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends
shall begin to accrue and be cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Junior Participating
Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date after
the record date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior
Participating Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Junior Participating Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than sixty (60) days prior to the
date fixed for the payment thereof.
Section
3. Voting
Rights. The
holders of shares of Series A Junior Participating Preferred Stock shall have
the following voting rights:
(A) Subject
to the provision for adjustment hereinafter set forth, each share of Series A
Junior Participating Preferred Stock shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time declare
or pay any dividend on Common Stock payable in shares of Common Stock or effect
a subdivision, combination of consolidation of the outstanding Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series A
Junior Participating Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) Except
as otherwise provided herein or by law, the holders of shares of Series A Junior
Participating Preferred Stock, the holders of shares of Common Stock and any
other capital stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) (i) If
at any time dividends on any Series A Junior Participating Preferred Stock shall
be in arrears in an amount equal to six (6) quarterly dividends thereon, the
occurrence of such contingency shall mark the beginning of a period (herein
called a “default
period”), which shall extend until such time when all accrued and unpaid
dividends for all previous quarterly dividend periods and for the current
quarterly dividend period on all shares of Series A Junior Participating
Preferred Stock then outstanding shall have been declared and paid or set apart
for payment. During each default period, the number of directors
constituting the Board of Directors shall automatically be increased by two (2)
immediately prior to an annual or special meeting of stockholders called in
accordance with this Section 3(C) to effect the election of such directors, and
the holders of record of the Series A Junior Participating Preferred Stock,
shall, voting together with the holders of any other series of Preferred Stock
entitled to vote thereon, voting together as a single class, shall have the
right, to elect two (2) directors.
(ii) During
any default period, the voting rights of the holders of Series A Junior
Participating Preferred Stock provided in this Section 3(C) may be exercised
initially at a special meeting called pursuant to subparagraph (iii) of this
Section 3(C) or at any annual meeting of stockholders, and thereafter at annual
meetings of stockholders. The absence of a quorum of the holders of
Common Stock at any annual or special meeting of stockholders shall not affect
the exercise by the voting rights provided to the holders of Series A Junior
Participating Preferred Stock by this Section 3(C). For so long as
there shall be any shares of Series A Junior Participating Preferred Stock then
outstanding, and during the continuance of any default period, the number of
directors constituting the Board of Directors may not be increased or decreased
without the affirmative vote of the holders of at least seventy-five percent
(75%) of the outstanding shares of Series A Junior Participating Preferred Stock
and any other series of Preferred Stock entitled to vote thereon, voting
together as a single class.
(iii) Unless
the holders of the Series A Junior Participating Preferred Stock shall, during
an existing default period, have previously exercised their right to elect
directors as provided in this Section 3(C), the Board of Directors shall
immediately call a special meeting of the holders of Series A Junior
Participating Preferred Stock upon the request of the holders of at least ten
percent (10%) in number of shares of Series A Junior Participating Preferred
Stock and any other series of Preferred Stock entitled to vote thereon then
outstanding, which such meeting shall be called for a date not earlier than 10
days and not later than 60 days after the Corporation’s receipt of such
request. Notwithstanding the provisions of this Section 3(C), no such
special meeting shall be called during the period sixty (60) days immediately
preceding the date fixed for the next annual meeting of the
stockholders. Notice of such special meeting and of any annual
meeting at which holders of Series A Junior Participating Preferred Stock are
entitled to vote pursuant to this Section 3(C) shall be given to each holder of
record of Series A Junior Participating Preferred Stock by mailing a copy of
such notice to such holder at his last address as the same appears on the books
of the Corporation.
(iv) Immediately
upon the expiration of a default period, (x) the right of the holders of Series
A Junior Participating Preferred Stock to elect directors as provided in this
Section 3(C) shall cease, (y) the term of any directors elected by the holders
of Series A Junior Participating Preferred Stock and any other series of
Preferred Stock entitled to vote thereon shall terminate, and (z) the number of
directors constituting the Board of Directors shall automatically be reduced by
two (2).
(D) Except
as set forth herein, or as otherwise provided by law, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
Section
4. Certain
Restrictions.
(A) Whenever
quarterly dividends or other dividends or distributions payable on the Series A
Junior Participating Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Junior Participating Preferred Stock
outstanding shall have been paid in full, the Corporation shall
not:
(i)
declare or pay dividends on or make any other distributions on
any shares of capital stock of the Corporation ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare
or pay dividends on or make any other distributions on any shares of capital
stock of the Corporation ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior Participating
Preferred Stock, except dividends paid ratably on the Series A Junior
Participating Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
all such shares and then entitled;
(iii) redeem,
purchase or otherwise acquire for consideration shares of any capital stock of
the Corporation ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any capital
stock of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Junior Participating
Preferred Stock or, with the consent of the Board of Directors, purchase or
otherwise acquire shares from employees upon their termination of
employment;
(iv) purchase
or otherwise acquire for consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of capital stock of the Corporation
ranking on a parity with the Series A Junior Participating Preferred Stock,
except in accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The
Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of capital stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such
manner.
Section
5. Reacquired
Shares. Any
shares of Series A Junior Participating Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section
6. Liquidation, Dissolution or
Winding Up.
(A)
Upon any liquidation (voluntary or otherwise), dissolution or winding up
of the Corporation, no distribution shall be made to the holders of shares of
capital stock of the Corporation ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior Participating
Preferred Stock unless, prior thereto, the holders of shares of Series A Junior
Participating Preferred Stock shall have received $1,000 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment (the “Series A Liquidation
Preference”). In the event, however, that there are not
sufficient assets of the Corporation available to permit payment in full of the
Series A Liquidation Preference and the liquidation preferences of all other
series of Preferred Stock then outstanding, if any, which rank on a parity with
the Series A Junior Participating Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of such parity shares in proportion
to their respective liquidation preferences. Following the payment of
the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the “Common Adjustment”),
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 1,000 (as appropriately adjusted as set forth in subparagraph
(C) below) (such number in clause (ii), the “Adjustment
Number”). In the event, however, that there are not sufficient
assets available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common
Stock.
(B) Following
the payment of the full amount of the Series A Liquidation Preference and the
Common Adjustment in respect of all outstanding shares of Series A Junior
Participating Preferred Stock and Common Stock, respectively, holders of Series
A Junior Participating Preferred Stock and holders of shares of Common Stock
shall receive their ratable and proportionate share of the remaining assets of
the Corporation legally available to be distributed to stockholders of the
Corporation in the ratio of the Adjustment Number to 1 with respect to such
Series A Junior Participating Preferred Stock and Common Stock, on a per share
basis, respectively.
(C) In
the event the Corporation shall at any time declare or pay any dividend on
Common Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the Adjustment Number in effect immediately prior to such event shall
be adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(D) Neither
the consolidation, merger or other combination of the Corporation with or into
any other corporation or the sale, lease, exchange or conveyance of all or any
part of the property, assets or business of the Corporation shall be deemed to
be a liquidation, dissolution or winding up of the Corporation for purposes of
this Section 6.
Section
7. Consolidation, Merger,
Etc. In case
the Corporation shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for, converted
into or changed into other stock or securities, cash and/or any other property,
then in any such case the shares of Series A Junior Participating Preferred
Stock shall at the same time be similarly exchanged for, converted into or
changed into an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is exchanged for,
converted into or changed into. In the event the Corporation shall at
any time declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision, combination or consolidation of the outstanding
Common Stock (by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A Junior
Participating Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section
8. No
Redemption. The
shares of Series A Junior Participating Preferred Stock shall not be
redeemable.
Section
9. Ranking. The
Series A Junior Participating Preferred Stock shall rank junior to all other
series of the Corporation’s Preferred Stock as to the payment of dividends and
the distribution of assets, unless the terms of any such series shall provide
otherwise.
Section
10. Amendment. For so
long as there shall be any shares of Series A Junior Participating Preferred
Stock then outstanding, the certificate of incorporation of the Corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Junior Participating
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of at least seventy-five percent (75%) of the outstanding shares of
Series A Junior Participating Preferred Stock, voting separately as a single
class.
Section
11. Fractional
Shares. Series
A Junior Participating Preferred Stock may be issued in fractions of a share
which shall entitle the holder, in proportion to such holders fractional shares,
to exercise voting rights, receive dividends, participate in distributions and
to have the benefit of all other rights of holders of Series A Junior
Participating Preferred Stock.”
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, said Vitacost.com, Inc. has caused this Certificate to be
executed and acknowledged, this 24th day of March, 2010.
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VITACOST.COM,
INC.
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/s/ Mary L. Marbach
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Name: Mary
L. Marbach
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Title: General
Counsel
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