Attached files
| file | filename |
|---|---|
| EX-99.1 - Vitacost.com, Inc. | v191145_ex99-1.htm |
| EX-3.(II)(A) - Vitacost.com, Inc. | v191145_ex3ii-a.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
______________________
FORM
8-K/A
______________________
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
Report: July 15, 2010
(Date of
earliest event reported)
______________________
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VITACOST.COM,
INC.
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(Exact
name of registrant as specified in its charter)
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______________________
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Delaware
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001-34468
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37-1333024
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(State
or other jurisdiction of incorporation)
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(Commission
File No.)
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(IRS
Employer Identification No.)
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5400
Broken Sound Blvd. NW – Suite 500
Boca
Raton, Florida 33487-3521
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(Address
of Principal Executive Offices)
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(561)
982-4180
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(Registrant’s
telephone number, including area code)
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Not
Applicable
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(Former
name or former address, if changed since last report)
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______________________
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):
£ 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))
Explanatory
Note
This Form
8-K/A is filed as an amendment (“Amendment No. 1”) to the Current Report on Form
8-K filed by Vitacost.com, Inc. (the “Company”) with the Securities and Exchange
Commission on July 16, 2010. Amendment No. 1 is being filed to amend
Item 5.07 to include the final certified voting results received from IVS
Associates Inc. (“IVS”), the independent inspector of election for the
solicitation of written consents and revocations of consent from holders of the
Company’s outstanding common stock as of the June 2, 2010 record date for the
consent solicitation initiated by Great Hill Investors, LLC, Great Hill Equity
Partners III, L.P. and Great Hill Equity Partners IV, L.P. (collectively,
“GHP”). Amendment No. 1 also amends Item 9.01 to include the press release
issued by the Company dated July 21, 2010 and the Amendment to the Amended and
Restated Bylaws of the Company (the “Bylaws”), which amendment was effective as
of the certification of the results of the consent
solicitation. Amendment No. 1 also includes additional disclosures in
Items 5.01, 5.02 and 5.03.
Item
5.01. Changes
in Control of Registrant.
Reference
is made to the information set forth under Items 5.02 and 5.07 of this Current
Report on Form 8-K. The disclosure contained in Items 5.02 and 5.07
is hereby incorporated by reference into this Item
5.01. Without constituting a determination by the Company as to
the occurrence or non-occurrence of a change in control of the Company in any
other context, the change in the composition of the board of directors (the
“Board”) of the Company described in Item 5.02 of this Current Report on Form
8-K may, for purposes of this Item 5.01, be deemed to have resulted in a change
in control of the Company.
GHP
beneficially owns in the aggregate 5,419,697 shares of the Company’s common
stock, representing 19.53% of the outstanding common stock as of June 2,
2010.
There are
no arrangements or understandings among the Company and GHP with respect to the
election of directors or other matters.
Information
concerning the security ownership of certain beneficial owners and management is
set forth in the Company’s definitive consent revocation statement, dated May
28, 2010, which is hereby incorporated by reference into this Item
5.01.
Item
5.02. Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
As
discussed in Item 5.07 below, on July 21, 2010, the Company received final
certified voting results from IVS. Eran Ezra, Stewart L. Gitler,
David N. Ilfeld, M.D. and Lawrence A. Pabst, M.D. have been removed, without
cause, from the Board effective as of the Effective Date (as defined below),
including their positions on the following committees — Mr. Ezra, the Audit
Committee; Mr. Gitler, the Nominating/Corporate Governance Committee; and Dr.
Pabst, the Compensation Committee and the Nominating/Corporate Governance
Committee. As of the Effective Date, Christopher S. Gaffney, Mark A.
Jung, Michael A. Kumin and Jeffrey M. Stibel were elected as directors of the
Company and will serve in such capacities until the next annual meeting of
stockholders and until their successors are duly elected and
qualified. The Board has not determined the committees of the Board
to which the new directors are expected to be named.
The
Company is not aware of any relationships or transactions in which Messrs.
Gaffney, Jung, Kumin or Stibel has or will have an interest, or was or is a
party, requiring disclosure under Item 404(a) of Regulation S-K.
The cash
and equity compensation of Messrs. Gaffney, Jung, Kumin and Stibel as directors
will be the same as previously reported in the Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2009 for other non-employee
directors.
Item
5.03. Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As
discussed in Item 5.07 below, as of the Effective Date, the Company’s
stockholders amended Article IV, Section 4.3 of the Bylaws in order to allow the
stockholders to fill any vacancies, however caused, on the Board (the “Amended
Bylaws”). The foregoing description of the material terms of the
Amended Bylaws is qualified in its entirety by the full text of Amended Bylaws
attached hereto as Exhibit 3(ii)(a), which is hereby incorporated by reference
into this Item 5.03.
Item
5.07. Submission
of Matters to a Vote of Security Holders.
On July
21, 2010, the Company announced that, in respect of GHP’s consent solicitation
and the Company’s revocation of consent solicitation, IVS issued its final
certified voting results confirming that GHP obtained from holders of record of
the Company’s outstanding common stock as of June 2, 2010 the requisite majority
votes (delivered to the Company on July 15, 2010 in the form of written
consents) of such holders to approve under applicable Delaware law and the
Company’s Amended and Restated Certificate of Incorporation and the Bylaws each
of GHP’s three proposals for which written consents were solicited by
GHP. The Company and GHP have accepted and will not contest such
certification by IVS. The final certified voting results are set
forth in the table below:
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Consent
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Does
Not Consent
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Abstain
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||||||||||
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Proposal
1: Amend Article IV, Section 4.3 of the Bylaws in order to
allow the stockholders to fill any vacancies, however caused, on the
Board:
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15,313,390 | 286,930 | 1,135,592 | |||||||||
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Proposal
2: Remove, without cause, the following four members of the
Board:
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Eran
Ezra
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15,027,177 | 571,949 | 1,136,786 | |||||||||
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Stewart
L. Gitler
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15,027,127 | 571,999 | 1,136,786 | |||||||||
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David
N. Ilfeld, M.D.
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15,312,096 | 291,575 | 1,132,241 | |||||||||
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Lawrence
A. Pabst, M.D.
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15,027,144 | 571,982 | 1,136,786 | |||||||||
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Proposal
3: Elect the following four nominees to serve as directors of
the Company until the next annual meeting of stockholders and until their
successors are duly elected and qualified:
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Christopher
S. Gaffney
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15,027,277 | 571,932 | 1,136,703 | |||||||||
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Mark
A. Jung
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15,023,227 | 571,999 | 1,140,686 | |||||||||
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Michael
A. Kumin
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15,263,742 | 331,467 | 1,140,703 | |||||||||
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Jeffrey
M. Stibel
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15,312,791 | 286,980 | 1,136,141 | |||||||||
Brokers
did not have discretionary voting authority on any of the proposals and, as a
result, broker non-votes had no effect on the proposals because only votes
affirmatively cast to “consent” to a proposal were counted toward the approval
of such proposal.
As a
result of the final vote certification issued by IVS and the acceptance thereof
by each of the Company and GHP, all proposals approved by the stockholders took
effect as of July 21, 2010 (the “Effective Date”).
A copy of
the press release announcing the final certified voting results is attached
hereto as Exhibit 99.1 and is hereby incorporated by reference into this Item
5.07.
Item
9.01. Financial
Statements and Exhibits.
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(d)
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Exhibits
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3(ii)(a)
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Amendment
to Amended and Restated Bylaws of Vitacost.com, Inc. effective July 21,
2010
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99.1
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Press
Release, issued by Vitacost.com, Inc. dated July 21,
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.
Dated: July
21, 2010
| VITACOST.COM, INC. | |||
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By:
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/s/ Richard P. Smith | |
| Name: Richard P. Smith | |||
| Title: Chief Financial Officer | |||
EXHIBIT
INDEX
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3(ii)(a)
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Amendment
to Amended and Restated Bylaws of Vitacost.com, Inc. effective July 21,
2010
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99.1
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Press
Release, issued by Vitacost.com, Inc. dated July 21,
2010
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