Attached files
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| EX-99.1 - Vitacost.com, Inc. | v204889_ex99-1.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
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Date
of report (Date of earliest event reported):
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December
7, 2010
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Vitacost.com
Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware
(State or
Other Jurisdiction of Incorporation)
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001-34468
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37-1333024
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(Commission
File Number)
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(IRS
Employer Identification No.)
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5400
Broken Sound Blvd. NW, Suite 500
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Boca
Raton, Florida
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33487-3521
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(561)
982-4180
(Registrant’s
Telephone Number, Including Area Code)
(Former
Name or Former Address, if Changed Since Last Report)
Copies
of all communications to:
Vitacost.com
Inc.
5400
Broken Sound Blvd. NW, Suite 500
Boca
Raton, Florida 33487-3521
(561)
982-4180
Attention:
Mary Marbach, Esq.
General
Counsel and Secretary
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
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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R
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
4.02. Non-Reliance on
Previously Issued Financial Statements or a Related Audit Report or Completed
Interim Review.
As
previously reported in the Company’s Current Report on Form 8-K dated November
15, 2010, the Audit Committee of the Board of Directors (the “Audit Committee”), in
consultation with its independent professional advisors and consultants,
commenced with the authorization of the full Board of Directors, an internal
review of the methodologies and procedures used by the Company to calculate the
value, for financial reporting purposes, of certain non-cash stock-based
compensation grants and awards to Company employees made just prior to the
completion of the Company’s initial public offering in September 2009 (the
“IPO”), as well as a review of the manner in which certain non-cash expense
items were classified in connection therewith (the “Internal
Review”).
During
the course of the Internal Review, which is ongoing, the Audit Committee and its
advisors discovered certain potential defects in the Company’s corporate
organizational and formation documents and certain corporate transactions that
may not have been authorized in accordance with all requirements of applicable
Delaware corporate law, including, without limitation, certain stock splits and
stock option and other stock issuance transactions effected both prior to and in
connection with the IPO. Accordingly, at this time questions have arisen
regarding the validity of such stock issuance transactions and the potential
impact of such invalidity on the Company’s equity capitalization.
In
view of the foregoing, the Company advises and hereby cautions that its
previously issued financial statements for all financial reporting periods from
and after 1994; the audit opinion of McGladry & Pullen, LLP included in,
without limitation, the Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2009, the Company’s Registration Statement on Form S-1 (No.
333- 143926 ) dated September 23, 2009, the Company’s Registration Statement on
Form S-8 (No. 333-164319) dated January 13, 2010, and in all other
communications, public announcements, filings and reports issued by the Company
since June 20, 2007 , cannot and should not be relied upon, primarily due to
uncertainty related to the Company’s equity capitalization at this
time.
The Board
of Directors, the Audit Committee and the Company’s management team are working
with outside professional advisors and consultants to explore proactive remedial
solutions, including certain transactions and either a state judicial
proceeding or the commencement of a prepackaged Chapter 11 reorganization of the
Company’s equity structure. There can be no assurance any such
transactions or remedies can be obtained or will be available to the
Company to remediate completely the issues described in this Item
4.02.
As a
result of the Audit Committee’s recommendation and the conclusion of the Board
of Directors that a restatement of the Company’s previously issued financial
statements may be required, the Company is evaluating the effectiveness of its
internal controls over financial reporting and its disclosure controls related
to all of the matters described in this Item 4.02.
The Audit
Committee has disclosed to and discussed all of these matters with McGladrey
& Pullen, LLP.
On
December 7, 2010, the Company notified The NASDAQ Stock Market and the
Securities and Exchange Commission regarding all of the matters disclosed in
this Item 4.02.
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Item
8.01.
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Other
Events.
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On
December 7, 2010, the Company announced that, because of the matters disclosed
in Item 4.02 of this Current Report on Form 8-K, the Board of Directors has
voted to postpone the Company’s 2010 Annual Meeting of Stockholders previously
scheduled to be held on Thursday, December 9, 2010.
A copy of
the press release, dated December 7, 2010, announcing the items reported in this
Current report on Form 8-K is attached hereto as Exhibit 99.1.
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Item
9.01.
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Financial
Statements and Exhibits.
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(d)
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Exhibits.
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99.1
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Press
Release issued by the Company, dated December 7,
2010.
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SIGNATURES
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.
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VITACOST.COM
INC.
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Dated: December
7, 2010
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By:
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/s/ Stephen E. Markert,
Jr.
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Stephen
E. Markert, Jr.
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Interim
Chief Financial
Officer
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2
EXHIBIT
INDEX
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99.1
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Press
Release issued by the Company, dated December 7,
2010.
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