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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

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SCHEDULE 13D

Under the Securities Exchange Act of 1934

 

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Vitacost.com, Inc.

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(Name of Issuer)

 

 

Christine S. Wheatley, Esq.

Group Vice President, Secretary and General Counsel

1014 Vine Street

Cincinnati, OH 45202

(513) 762-4000

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(Name, address and telephone number of person authorized to receive notices and communications)

 

with a copy to

Michael J. Aiello, Esq.

Matthew J. Gilroy, Esq.

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, New York  10153

(212) 310-8000

 

July 1, 2014

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(Date of event which requires filing of this statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. o

 

Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934 (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act. (However, see the Notes.)

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* Pursuant to the Tender and Support Agreements described in Item 3 below, The Kroger Co. may be deemed to have beneficial ownership of 11,796,327 shares of common stock, par value $0.00001 per share, of Vitacost.com, Inc. issued and outstanding as of July 1, 2014, as set forth in the Merger Agreement described in Item 3 below.  Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by The Kroger Co. that it is the beneficial owner of any of the common stock referred to herein for purposes of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

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* Pursuant to the Tender and Support Agreements described in Item 3 below, Vigor Acquisition Corp. may be deemed to have beneficial ownership of 11,796,327 shares of common stock, par value $0.00001 per share, of Vitacost.com, Inc. issued and outstanding as of July 1, 2014, as set forth in the Merger Agreement described in Item 3 below.  Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Vigor Acquisition Corp. that it is the beneficial owner of any of the common stock referred to herein for purposes of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

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Item 1.

Security and Issuer.

 

This statement on Schedule 13D (this “Schedule 13D”) relates to the common stock, par value $0.00001 per share, of Vitacost.com, Inc., a Delaware corporation (“Vitacost”), and is being filed pursuant to Rule 13d−1 under the Securities Exchange Act of 1934 (the “Exchange Act”). The principal executive offices of Vitacost are located at 5400 Broken Sound Blvd. NW, Suite 500, Boca Raton, FL 33487.

Item 2.

Identity and Background.

This Schedule 13D is being filed  jointly on behalf of The Kroger Co., an Ohio corporation (“Kroger”) and Vigor Acquisition Corp., a Delaware corporation (“Acquisition Sub”) (Kroger and Acquisition Sub, collectively, the “Reporting Persons”).  The address of the principal business and principal officer of each of the Reporting Persons is 1014 Vine Street, Cincinnati, OH 45202.

Kroger is a retailer in the United States, operating supermarkets and multi-department stores under two dozen local banner names.  Acquisition Sub is a direct wholly owned subsidiary of Kroger, and was recently incorporated for the purpose of acquiring all of the issued and outstanding shares of the common stock, par value $0.00001 per share, of Vitacost (the “Shares”) and consummating the transactions contemplated by the Merger Agreement (defined below in Item 4) and, to date, has engaged and is expected to engage in no other activities other than those incidental to the Offer (defined below in Item 4), the Merger (defined below in Item 4) and the Merger Agreement.  Until immediately prior to the time Acquisition Sub purchases Shares pursuant to the Offer, it is not anticipated that Acquisition Sub will have any significant assets or liabilities.

The name, business address, present principal occupation or employment and citizenship of each executive officer and director and each controlling person of Kroger and Acquisition Sub, and each executive officer and director of any corporation or other person ultimately in control of Kroger and Acquisition Sub, are set forth on Annex A attached hereto.

During the last five years, none of Kroger or Acquisition Sub, and to the best knowledge of each of Kroger and Acquisition Sub, none of the persons on Annex A, (a) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

The Reporting Persons have entered into a Joint Filing Agreement, dated July 10, 2014, a copy of which is attached as Exhibit 1 hereto, pursuant to which the Reporting Persons have agreed to file this statement jointly in accordance with the provisions of Rule 13d−1(k)(1) of the Exchange Act.

Item 3.

Source and Amount of Funds or Other Consideration.

Pursuant to, and subject to the terms and conditions contained in, the Tender and Support Agreements described in Item 4 of this statement, the Reporting Persons may be deemed to have acquired beneficial ownership of the Subject Shares (as defined below) by virtue of the execution of the Tender and Support Agreements (as defined in Item 4 below) by Kroger, Acquisition Sub and certain stockholders of Vitacost. As a result of Acquisition Sub being its direct wholly owned subsidiary, Kroger may be deemed to share beneficial ownership of the Subject Shares that Acquisition Sub may be deemed to beneficially own. No payments were made by or on behalf of the Reporting Persons in connection with the execution of the Merger Agreement (as defined in Item 4 below) or the execution of the Tender and Support Agreements. It is currently anticipated that Kroger or Acquisition Sub will finance the acquisition of Shares in the Offer (as defined below in Item 4) with Kroger’s cash on hand, and/or debt.

Item 4.

Purpose of Transaction.

Merger Agreement and Tender Offer

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On July 1, 2014, Kroger and Acquisition Sub entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Vitacost.  Under the Merger Agreement, among other things, Acquisition Sub will commence a tender offer (the “Offer”) to purchase all of the Shares, at a price per Share of $8.00 in cash, without interest (the “Offer Price”). Upon successful completion of the Offer, and subject to the terms and conditions of the Merger Agreement, Acquisition Sub will be merged with and into Vitacost (the “Merger”), and Vitacost will survive the Merger as a direct wholly owned subsidiary of Kroger (the “Surviving Corporation”).  It is anticipated that, the Merger will be governed by Section 251(h) of the General Corporation Law of the State of Delaware (the “DGCL”), with no stockholder vote required to consummate the Merger.

At the effective time of the Merger (the “Effective Time”), each Share issued and outstanding immediately prior to the Effective Time (other than Shares owned by Vitacost, Kroger or Acquisition Sub or their respective wholly owned subsidiaries, or by stockholders who have validly exercised their appraisal rights under Delaware law) will be converted automatically into the right to receive the Offer Price (the “Merger Consideration”). Options to purchase Shares that are outstanding, whether or not vested, immediately prior to the Effective Time, will be canceled and, provided that the per share exercise price of such options exceeds the Offer Price, converted automatically into the right to receive, in exchange for the cancellation of such options, an amount of cash, without interest, equal to the product obtained by multiplying (x) the aggregate number of Shares that were issuable upon exercise of such option immediately prior to the Effective Time and (y) the Offer Price, less the per share exercise price of such option.

Under the Merger Agreement, and upon the terms and conditions contained therein, Acquisition Sub is obligated to commence the Offer as promptly as reasonably practicable after July 1, 2014, the date of the Merger Agreement. The Offer will remain open for at least 20 business days, which period may be extended under certain circumstances described in the Merger Agreement. Acquisition Sub’s obligation to accept for payment and pay for any Shares tendered in the Offer is subject to certain conditions, including (i) there having been validly tendered and not validly withdrawn prior to the expiration of the Offer a number of Shares that represents at least a majority of the total number of Shares outstanding on a fully diluted basis, (ii) the waiting period (and any extension thereof) applicable to the Offer under the Hart−Scott−Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder having been expired or terminated prior to the Expiration Date, (iii) the absence of any material adverse effect with respect to Vitacost and (iv) certain other customary conditions. The Offer is not subject to a financing condition.

In the event the Merger cannot be effected pursuant to Section 251(h) of the DGCL, Vitacost granted to Acquisition Sub under the Merger Agreement an irrevocable option (the “Top−Up Option”), exercisable after the consummation of the Offer and prior to the Effective Time, to purchase at a price per Share equal to the Offer Price up to that number of newly issued Shares (the “Top−Up Shares”) from Vitacost at a per Share purchase price equal to the Offer Price that, when added to the number of Shares owned by Kroger and Acquisition Sub at the time of exercise of the Top−Up Option, constitutes one hundred shares more than 90% of the Shares outstanding immediately after the issuance of the Top−Up Shares on a fully diluted basis.  If Kroger and Acquisition Sub shall acquire, together with the Shares held by Kroger, Acquisition Sub and any other subsidiary of Kroger, at least 90% of the outstanding Shares, they will complete the Merger through the “short form” procedures available under Section 253 of the DGCL.

The Merger Agreement also provides that, upon payment for Shares representing at least a majority of the total number of outstanding shares of Vitacost’s common stock on a fully diluted basis, Acquisition Sub will be entitled to designate a number of directors to the board of directors of Vitacost (the “Vitacost Board”) in proportion with the percentage of the Shares it owns following the Offer. Between such time and the Effective Time, the Vitacost Board will have at least two directors who are directors of Vitacost on the date of the Merger Agreement and who are independent directors for purposes of the continued listing requirements of The Nasdaq Global Market.

 

Kroger, Acquisition Sub and Vitacost have made customary representations and warranties in the Merger Agreement and agreed to certain customary covenants, including covenants regarding operation of the business of Vitacost and its subsidiaries prior to the closing. In addition, Vitacost has made certain covenants restricting Vitacost from soliciting, or providing information or entering into discussions concerning, proposals relating to alternative business combination transactions. However, Vitacost may take certain specified actions in response to an unsolicited proposal that the Vitacost Board reasonably determines in good faith is, or could reasonably be expected to lead to, a proposal superior to the transactions contemplated in the Merger Agreement, if failure to take such actions would be reasonably expected to result in a breach of the Vitacost Board’s fiduciary duties and other specified conditions are met. In such circumstances, and subject to certain obligations to notify Kroger and to other rights granted to Kroger, including the right to require Vitacost to engage in good faith negotiations for an amendment to the Merger Agreement, the Vitacost Board may cause Vitacost to terminate the Merger Agreement in response to such superior proposal. Upon termination of the Merger Agreement in such circumstances or other specified circumstances, Vitacost will be required to pay Kroger a termination fee of $9,275,000.  If Kroger terminates the Merger Agreement as a result of a breach of Vitacost’s representations or warranties or Vitacost’s failure to perform in any material respect under the Merger Agreement, which causes a failure of the Offer conditions and which is not cured, then Vitacost is required to pay Kroger’s out of pocket fees and expenses.

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The Merger Agreement has been provided solely to inform investors of its terms. The representations, warranties and covenants contained in the Merger Agreement were made only for the purposes of such agreement and as of specific dates, were made solely for the benefit of the parties to the Merger Agreement and may be intended not as statements of fact, but rather as a way of allocating risk to one of the parties if those statements prove to be inaccurate. In addition, such representations, warranties and covenants may have been qualified by certain disclosures not reflected in the text of the Merger Agreement and may apply standards of materiality in a way that is different from what may be viewed as material by stockholders of, or other investors in, Vitacost. Vitacost’s stockholders and other investors are not third−party beneficiaries under the Merger Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of Vitacost, Kroger, Acquisition Sub or any of their respective subsidiaries or affiliates.

Tender and Support Agreements

In connection with the execution and delivery of the Merger Agreement, Kroger and Acquisition Sub entered into tender and support agreements, dated as of July 1, 2014 (the “Tender and Support Agreements”), with each of Jeffrey Horowitz, JHH Capital, LLC, Great Hill Investors, LLC, Great Hill Equity Partners III, L.P. and Great Hill Equity Partners IV, L.P. (collectively, the “Supporting Stockholders”). Pursuant to the Tender and Support Agreements, the Supporting Stockholders agreed, subject to certain limited specified exceptions, to tender, and not withdraw, all outstanding Shares beneficially owned by them, or acquired by them after such date (collectively, the “Subject Shares”).  In addition, such stockholders have agreed, subject to certain exceptions, to refrain from disposing of the Subject Shares and soliciting alternative acquisition proposals to the Merger. The Tender and Support Agreements will terminate upon certain circumstances, including upon termination of the Merger Agreement.

Based upon information provided by the Supporting Stockholders, as of July 1, 2014, the Subject Shares included: (i) 2,022,500 Shares beneficially owned by Jeffrey Horowitz, (ii) 3,049,013 Shares beneficially owned by JHH Capital, LLC; (iii) 19,489 Shares beneficially owned by Great Hill Investors, LLC; (iv) 4,398,828 Shares beneficially owned by Great Hill Equity Partners III, L.P.; and (v) 2,306,497 Shares beneficially owned by Great Hill Equity Partners IV, L.P. The Reporting Persons may be deemed to have acquired shared voting and disposition power with respect to the Subject Shares by reason of the execution and delivery of the Tender and Support Agreements by Kroger and Acquisition Sub. As a result of Acquisition Sub being its direct wholly owned subsidiary, Kroger may be deemed to share beneficial ownership of the Subject Shares that Acquisition Sub may be deemed to beneficially own.

The foregoing descriptions of the Merger Agreement and Tender and Support Agreements do not purport to be complete and are qualified in their entirety by reference to such agreements. The Merger Agreement and Tender Support Agreements are referenced herein as Exhibits 2 through 7 and are incorporated by reference into this Item 4.

The purpose of the transactions described above is for Kroger, through Acquisition Sub, to acquire control of, and the entire equity interest in, Vitacost. Kroger required that the Supporting Stockholders agree to enter into the Tender and Support Agreements to induce Kroger and Acquisition Sub to enter into the Merger Agreement and to consummate the transactions contemplated by the Merger Agreement, including the Offer and the Merger. Upon consummation of the Merger, Vitacost will become a wholly owned subsidiary of Kroger, the Shares will cease to be freely traded or listed, Vitacost common stock will be de−registered under the Securities Exchange Act of 1934, as amended, and Kroger will control the board of directors of Vitacost and will make such other changes in the charter, bylaws, capitalization, management and business of Vitacost as set forth in the Merger Agreement and/or as may be appropriate in its judgment (subject to certain limitations).

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Except as set forth or incorporated by reference in this Schedule 13D, Kroger and Acquisition Sub have no plans or proposals that relate to or would result in any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

Item 5.

Interest in Securities of the Issuer.

(a)

As a result of the Tender and Support Agreements, as of July 1, 2014, the Reporting Persons may be deemed, for purposes of Rule 13d−3 under the Exchange Act (“Rule 13d−3”), to share with the Supporting Stockholders the power to vote or direct the voting or disposition of the 11,796,327 Subject Shares, and thus, for the purpose of Rule 13d−3, the Reporting Persons may be deemed to be the beneficial owners of an aggregate of 11,796,327 Shares, which constitutes approximately 32.0% of the Shares (as represented by Vitacost in the Merger Agreement). Including only options to purchase Shares exercisable on July 1, 2014 or becoming exercisable within 60 days thereafter, the Supporting Stockholders beneficially owned, in the aggregate, 11,258,327 Shares (representing approximately 30.9 percent of all outstanding Shares after giving effect to the exercise of such options) as of July 1, 2014.  Except as set forth in this Item 5(a), none of the Reporting Persons, and, to the best knowledge of the Reporting Persons, none of the persons named in Annex A hereto beneficially owns any Shares. The Reporting Persons hereby disclaim that they constitute a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with the Supporting Stockholders and hereby disclaim beneficial ownership of any Shares beneficially owned by the Supporting Stockholders or any of their affiliates including, without limitation, the Subject Shares. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that it is the beneficial owner of any Shares, and the Reporting Persons expressly disclaim all beneficial ownership of such Shares.

See the foregoing descriptions of the Merger Agreement and Tender Support Agreements set forth in Item 4, which are incorporated herein by reference. The Merger Agreement and Tender and Support Agreements are referenced herein as Exhibits 2 through 7 and are incorporated by reference into this Item 5.

(b)

Except to the extent that it may be deemed to by virtue of the Tender and Support Agreements, none of the Reporting Persons, and to the best knowledge of the Reporting Persons, none of the persons named in Annex A hereto, have sole power to vote or direct the vote, shared power to vote or to direct the vote, or sole or shared power to dispose or to direct the disposition of any of the Shares.

The Reporting Persons may be deemed in certain circumstances to have the shared power with the Supporting Stockholders to vote the 11,796,327 Subject Shares.  However, the Reporting Persons (i) are not entitled to any rights as a stockholder of Vitacost as to the Subject Shares, except as otherwise expressly provided in the Tender and Support Agreements, and (ii) disclaim any beneficial ownership of any of the Subject Shares.

The Reporting Persons hereby disclaim that they constitute a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with the Supporting Stockholders and hereby disclaim beneficial ownership of any Shares beneficially owned by the Supporting Stockholders or any of their affiliates including, without limitation, the Subject Shares.

(c)

Except for the Merger Agreement and the Tender and Support Agreements described above, none of the Reporting Persons, and to the best knowledge of the Reporting Persons, none of the persons named in Annex A hereto, has effected any transactions in the Shares during the past 60 days.

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(d)

Except for the Merger Agreement and the Tender and Support Agreements described above, none of the Reporting Persons, and to the best knowledge of the Reporting Persons, none of the persons named in Annex A hereto, has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities of Vitacost reported herein.

(e)

Not applicable.

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

The information set forth under Items 3, 4 and 5 and the agreements set forth on the Exhibits attached hereto are incorporated herein by reference. Other than the Merger Agreement and the Tender and Support Agreements described above, to the best of the knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between any of the Reporting Persons or any person listed on Annex A hereto, and any person with respect to the securities of Vitacost, including, but not limited to, transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, including any securities pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities other than standard default and similar provisions contained in loan agreements.

Item 7.

Material to be Filed as Exhibits.

Exhibit 1

Joint Filing Agreement, dated as of July 10, 2014, by and among The Kroger Co. and Vigor Acquisition Corp.

Exhibit 2

Agreement and Plan of Merger, dated as of July 1, 2014, among The Kroger Co., Vigor Acquisition Corp. and Vitacost.com, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Vitacost.com, Inc. with the Securities and Exchange Commission on July 2, 2014)

Exhibit 3

Tender and Support Agreement, dated as of July 1, 2014, by and among The Kroger Co., Vigor Acquisition Corp. and Jeffrey Horowitz

Exhibit 4

Tender and Support Agreement, dated as of July 1, 2014, by and among The Kroger Co., Vigor Acquisition Corp. and JHH Capital, LLC

Exhibit 5

Tender and Support Agreement, dated as of July 1, 2014, by and among The Kroger Co., Vigor Acquisition Corp. and Great Hill Investors, LLC

Exhibit 6

Tender and Support Agreement, dated as of July 1, 2014, by and among The Kroger Co., Vigor Acquisition Corp. and Great Hill Equity Partners III, L.P.

Exhibit 7

Tender and Support Agreement, dated as of July 1, 2014, by and among The Kroger Co., Vigor Acquisition Corp. and Great Hill Equity Partners IV, L.P.

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SIGNATURE

After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies as to itself that the information set forth in this statement is true, complete and correct.

Dated:  July 10, 2014

 

	THE KROGER CO.
	By:	/s/ Christine S. Wheatley
		Name:	Christine S. Wheatley
		Title:	Group Vice President, General Counsel and Secretary
	VIGOR ACQUISITION CORP.
	By:	/s/ Christine S. Wheatley
		Name:	Christine S. Wheatley
		Title:	President

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The Kroger Co.

Set forth below are the name and present principal occupation of each director and executive officer of The Kroger Co. as of July 10, 2014. The business address of The Kroger Co. is 1014 Vine Street, Cincinnati, OH 45202. All directors and executive officers set forth below are United States citizens.

 

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Vigor Acquisition Corp.

Set forth below are the name and present principal occupation of each director and executive officer of Vigor Acquisition Corp. as of July 10, 2014. The business address of Vigor Acquisition Corp. is 1014 Vine Street, Cincinnati, OH 45202. All directors and executive officers set forth below are United States citizens.

 

 

The Kroger Co. is the sole stockholder of Vigor Acquisition Corp.  None of the persons listed above beneficially owns any Shares.

 

 

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Exhibit 1

JOINT FILING AGREEMENT

Pursuant to Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing of this Statement on Schedule 13D including any amendments thereto. This Joint Filing Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

The execution and filing of this agreement shall not be construed as an admission that the below-named parties are a group or have acted as a group.

Dated: July 10, 2014

 

 

 

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Exhibit 4

 

EXECUTION COPY

 

TENDER AND SUPPORT AGREEMENT

 

TENDER AND SUPPORT AGREEMENT, dated as of July 1, 2014 (this “Agreement”), among The Kroger Co., an Ohio corporation (“Parent”), Vigor Acquisition Corp., a Delaware corporation (“Acquisition Sub”), and the Person listed as “Stockholder” on the signature page hereto (“Stockholder”).

 

WHEREAS, as a condition and inducement to Parent’s and Acquisition Sub’s willingness to enter into an Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), with Vitacost.com, Inc. a Delaware corporation (the “Company”), Parent has requested Stockholder, and Stockholder has agreed, to enter into this Agreement with respect to all shares of common stock, par value $0.00001 per share, of the Company that Stockholder Beneficially Owns (as defined in Section 6.10 below) at any time during the Support Period (as defined in Section 6.10 below).

 

NOW, THEREFORE, the parties hereto agree as follows:

 

ARTICLE 1

Agreement to Tender

 

Section 1.01  Tender of Shares.  Stockholder agrees: (i) to promptly (and, in any event, not later than five (5) Business Days after commencement of the Offer) validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer and Rule 14d-2 under the Exchange Act, all of the outstanding Company Shares Beneficially Owned by Stockholder (free and clear of any Liens or restrictions, except for any applicable restrictions on transfer under the Securities Act and the rules and regulations promulgated thereunder that would not in any event prevent Stockholder from tendering Stockholder’s Company Shares in accordance with this Agreement or otherwise complying with Stockholder’s obligations under this Agreement); and (ii) if Stockholder acquires Beneficial Ownership of any additional outstanding Company Shares during the Support Period, to promptly (and, in any event, not later than three (3) Business Days after Stockholder acquires Beneficial Ownership of such additional outstanding Company Shares) validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer, all of such additional Company Shares (free and clear of any Liens or restrictions, except for any applicable restrictions on transfer under the Securities Act and the rules and regulations promulgated thereunder that would not in any event prevent Stockholder from tendering Stockholder’s Company Shares in accordance with this Agreement or otherwise complying with Stockholder’s obligations under this Agreement).  Notwithstanding anything in this Agreement to the contrary, (a) the Stockholder shall not have any obligation under this Section 1.01 to tender into the Offer if the tender would give rise to liability (including disgorgement) under Section 16(b) of the Exchange Act, and (b) nothing herein shall require Stockholder to exercise any Company Option or other equity award or require Stockholder to purchase any Company Shares pursuant to any Company Warrant or otherwise, and nothing herein shall prohibit Stockholder from exercising any Company Option or Company Warrants held by such Stockholder as of the date of this Agreement.

 

Section 1.02  No Withdrawal.  Stockholder agrees not to withdraw, and not to cause or permit to be withdrawn, any Company Shares from the Offer unless and until (i) the Offer expires without Acquisition Sub having accepted for payment any Company Shares tendered in the Offer or (ii) termination of this Agreement in accordance with Section 6.03 hereof.

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Section 1.03  Conditional Obligation.  Stockholder acknowledges and agrees that Acquisition Sub’s obligation to accept for payment Company Shares tendered into the Offer, including any Company Shares tendered by Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.

 

ARTICLE 2

Voting Agreement; Grant of Proxy

 

Section 2.01.  Voting Agreement.  Stockholder hereby agrees that, during the Support Period, Stockholder will not vote any outstanding Company Shares Beneficially Owned by Stockholder in favor of, or consent to, and will vote against and not consent to, the approval of any (i) Acquisition Proposal, (ii) reorganization, recapitalization, dissolution, liquidation or winding-up of the Company or any other extraordinary transaction involving the Company other than the Merger, (iii) corporate action the consummation of which would frustrate the purposes, or prevent or materially delay the consummation, of any of the transactions contemplated by the Merger Agreement or (iv) other matter relating to, or in connection with, any of the foregoing matters. Stockholder shall use its commercially reasonable efforts to ensure that, during the Support Period, any other Person having voting power with respect to any outstanding Company Shares Beneficially Owned by Stockholder will not vote any such shares in favor of or consent to, and will vote against, the approval of the matters described in clauses (i) through (iv) of the preceding sentence.

 

Section 2.02.  Irrevocable Proxy.  Stockholder hereby revokes (or agrees to cause to be revoked) any and all previous proxies granted with respect to the outstanding Company Shares Beneficially Owned by Stockholder.  By entering into this Agreement, Stockholder hereby grants a proxy appointing Parent as Stockholder’s attorney-in-fact and proxy, with full power of substitution, for and in Stockholder’s name, to vote, express consent or dissent, or otherwise to utilize such voting power in the manner contemplated by Section 2.01 above as Parent or its proxy or substitute shall, in Parent’s sole discretion, deem proper with respect to the outstanding Company Shares Beneficially Owned by Stockholder.  The proxy granted by Stockholder pursuant to this Article 2 is irrevocable and is granted in consideration of Parent and Acquisition Sub entering into this Agreement and the Merger Agreement and incurring certain related fees and expenses.  The proxy granted by Stockholder shall not be exercised to vote, consent or act on any matter except as contemplated by Section 2.01 above.  The proxy granted by Stockholder shall be revoked, terminated and of no further force or effect, automatically and without further action, upon termination of this Agreement in accordance with Section 6.03 hereof.

 

ARTICLE 3

Representations and Warranties of Stockholder

 

Stockholder represents and warrants to Parent that:

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Section 3.01.  Authorization.  The execution, delivery and performance by Stockholder of this Agreement and the consummation by Stockholder of the transactions contemplated hereby are within the powers of Stockholder and, if applicable, have been duly authorized by all necessary corporate, company, partnership or other action.  This Agreement constitutes a legal, valid and binding agreement of Stockholder, enforceable against Stockholder in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, moratorium or similar law affecting creditors’ rights generally, to rules of law governing specific performance, injunctive relief and other equitable remedies, to approval by the Company Board of this Agreement and the Merger Agreement and the transactions contemplated hereby and thereby for purposes of Section 203 of the DGCL and to the federal securities laws and rules promulgated thereunder, including but not limited to, any withdrawal rights under the tender offer rules.  If this Agreement is being executed in representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into and perform this Agreement.

 

Section 3.02.  Non-Contravention.  The execution, delivery and performance by Stockholder of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) violate the certificate of incorporation or bylaws, or other comparable charter or organizational documents, of Stockholder, if any, (ii) violate any Applicable Law, (iii) conflict with or violate or require any consent, approval, notice or other action by any Person under, constitute a default (with or without notice or lapse of time or both) under, or give rise to any right of termination, cancellation or acceleration or to a loss of any benefit to which Stockholder is entitled under any provision of any Contract binding on Stockholder or any of Stockholder’s properties or assets, including the Company Shares Beneficially Owned by Stockholder or (iv) result in the imposition of any Lien on any asset of Stockholder.

 

Section 3.03.  Ownership of Shares.  Stockholder is the Beneficial Owner of the Company Shares set forth on the signature page hereto opposite such Stockholder’s name, free and clear of any Lien and any other limitation or restriction (including any restriction on the right to vote or otherwise dispose of the Company Shares Beneficially Owned by Stockholder), except for any applicable restrictions on transfer under the federal or state securities laws and the rules and regulations promulgated thereunder that would not in any event prevent Stockholder from tendering Stockholder’s Company Shares in accordance with this Agreement or otherwise complying with Stockholder’s obligations under this Agreement.

 

Section 3.04.  Total Shares.  Except for the Company Shares set forth on the signature page hereto, Stockholder does not Beneficially Own any (i) shares of capital stock or voting securities of the Company or (ii) options, warrants or other rights to acquire, or securities convertible into or exchangeable for (in each case, whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing), any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company.

 

Section 3.05.  Finder’s Fees.  No investment banker, broker, finder or other intermediary is entitled to a fee or commission from Parent, Acquisition Sub or the Company in respect of this Agreement based upon any Contract made by or on behalf of Stockholder solely in Stockholder’s capacity as a stockholder of the Company.

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Section 3.06.  No Litigation.  As of the date of this Agreement, there is no suit, claim, action, investigation or other Proceeding pending or, to the knowledge of Stockholder, threatened against Stockholder at law or in equity before or by any Governmental Authority that could reasonably be expected to impair the ability of Stockholder to perform Stockholder’s obligations hereunder or consummate the transactions contemplated hereby.

 

ARTICLE 4

Representations and Warranties of Parent and Acquisition Sub

 

Parent and Acquisition Sub represent and warrant to Stockholder:

 

Section 4.01.  Corporation Authorization.  The execution, delivery and performance by Parent and Acquisition Sub of this Agreement and the consummation by Parent and Acquisition Sub of the transactions contemplated hereby are within the corporate powers of Parent and the corporate powers of Acquisition Sub and have been duly authorized by all necessary corporate action.  This Agreement constitutes a valid and binding agreement of Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, moratorium or similar law affecting creditors’ rights generally and to rules of law governing specific performance, injunctive relief and other equitable remedies.

 

ARTICLE 5

Covenants of Stockholder

 

Stockholder hereby covenants and agrees that:

 

Section 5.01.  No Proxies for, Encumbrances on or Disposition of Shares.  During the Support Period, except pursuant to the terms of this Agreement, Stockholder shall not, without the prior written consent of Parent, directly or indirectly, (a) grant any proxies, or enter into any voting trust or other Contract, with respect to the voting of any Company Shares Beneficially Owned by Stockholder, (b) sell, assign, transfer, tender, encumber or otherwise dispose of, or enter into any Contract with respect to the direct or indirect sale, assignment, transfer, tender, encumbrance or other disposition of, any such Company Shares or (c) take any other action that would make any representation or warranty of Stockholder contained herein untrue or incorrect in any material respect or in any way restrict, limit or interfere in any material respect with the performance of Stockholder’s obligations hereunder or the transactions contemplated hereby or by the Merger Agreement, or seek to do or solicit any of the foregoing actions, or cause or permit any other Person to take any of the foregoing actions, and agrees to notify Parent and Acquisition Sub promptly, and to provide all material details reasonably requested by Parent or Acquisition Sub, if Stockholder shall be approached or solicited, directly or indirectly, by any Person with respect to any of the foregoing.  Without limiting the generality of the foregoing, during the Support Period, Stockholder shall not tender, agree to tender or cause or permit to be tendered any Company Shares Beneficially Owned by Stockholder into or otherwise in connection with any tender or exchange offer, except pursuant to the Offer.  Notwithstanding the foregoing, Stockholder may transfer Company Shares held by Stockholder to a trust for the benefit of Stockholder; provided that a transfer referred to in this sentence shall be permitted only if, as a precondition to such transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be bound by all of the terms of this Agreement.

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Section 5.02.  Other Offers.  Neither Stockholder (in Stockholder’s capacity as such), nor any of Stockholder’s Subsidiaries, if any, shall, nor shall Stockholder or any of Stockholder’s Subsidiaries, if any, authorize or permit any of its or their respective Representatives to, and Stockholder shall instruct, and cause each applicable Subsidiary of Stockholder to instruct, each such Representative not to, directly or indirectly, take any of the following actions: (i) solicit, initiate, cause or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, an Acquisition Proposal; (ii) furnish to any Person (other than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case with the intent to induce the making, submission or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal; or (iv) enter into any Contract contemplating or otherwise relating to an Acquisition Transaction.  Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by any Subsidiary of Stockholder or Representatives of Stockholder or any of its Subsidiaries shall be deemed to be a breach of this Section 5.02 by Stockholder.  Stockholder shall, and shall cause its Subsidiaries and its and their respective Representatives to immediately cease any and all existing discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal, and shall request the return from all such Persons or the destruction by such Persons of all copies of confidential information previously provided to such Persons by Stockholder, its Subsidiaries or Representatives.  Stockholder shall promptly notify Parent if it becomes aware of any receipt by Stockholder, its Subsidiaries or Representatives of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, the terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the Person or group making any such Acquisition Proposal, request or inquiry (and shall include with such notice copies of any written materials received from or on behalf of such Person relating to such Acquisition Proposal).  Stockholder shall keep Parent reasonably informed of the status and material terms of any such Acquisition Proposal known to Stockholder, request or inquiry (and Stockholder shall provide Parent with copies of any additional written materials received by it that relate to such Acquisition Proposal, inquiry or request).  Notwithstanding the foregoing, nothing herein shall limit or affect any actions taken by Stockholder (or any affiliated officer or director of the Company) in compliance with the Merger Agreement, including taking any of the foregoing actions that would be permitted to be taken by the Company pursuant to the Merger Agreement.

 

Section 5.03.  Communications.  Stockholder, and each of Stockholder’s Subsidiaries, if any, shall not, and shall cause their respective officers, directors, employees or other Representatives, if any, not to, directly or indirectly, make any press release, public announcement or other public communication that criticizes or disparages this Agreement or the Merger Agreement or any of the transactions contemplated hereby and thereby, without the prior written consent of Parent.  Stockholder hereby (i) consents to and authorizes the publication and disclosure by Parent, Acquisition Sub and the Company (including in the Schedule TO, the Schedule 14D-9 or any other publicly filed documents relating to the Merger, the Offer or any other transaction contemplated by the Merger Agreement) of: (a) Stockholder’s identity; (b) Stockholder’s Beneficial Ownership of Company Shares; and (c) the nature of Stockholder’s commitments, arrangements and understandings under this Agreement, and any other information that Parent, Acquisition Sub or the Company determines to be necessary in any SEC disclosure document in connection with the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement and (ii) agrees as promptly as practicable to notify Parent, Acquisition Sub and the Company of any required corrections with respect to any written information supplied by Stockholder specifically for use in any such disclosure document.  Notwithstanding the foregoing, nothing herein shall limit or affect any actions taken by Stockholder (or any affiliated officer or director of the Company) in compliance with the Merger Agreement.

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Section 5.04.  Additional Shares.  In the event that Stockholder acquires Beneficial Ownership of, or the power to dispose of or vote or direct the disposition or voting of, any additional Company Shares or other interests in or with respect to the Company, such Company Shares or other interests shall, without further action of the parties, be subject to the provisions of this Agreement, and the number of Company Shares Beneficially Owned by Stockholder set forth on the signature page hereto will be deemed amended accordingly.  Stockholder shall promptly notify Parent and Acquisition Sub of any such event.

 

Section 5.05.  Waiver of Appraisal and Dissenters’ Rights and Actions.  Stockholder hereby (i) waives and agrees not to exercise any rights (including under Section 262 of the General Corporation Law of the State of Delaware) to demand appraisal of any Company Shares Beneficially Owned by Stockholder or rights to dissent from the Merger which may arise with respect to the Merger and (ii) agrees not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or other Proceeding, against Parent, Acquisition Sub, the Company or any of their respective successors relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the making or consummation of the Offer or consummation of the Merger, including any Proceeding (x) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (y) alleging a breach of any fiduciary duty of the Board of Directors of the Company in connection with the Merger Agreement or the transactions contemplated thereby.

 

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Section 6.02.  Further Assurances.  Stockholder shall, to the extent requested by Parent, promptly: (i) use commercially reasonable efforts to cause each other Person having voting power with respect to any Company Shares Beneficially Owned by Stockholder to execute and deliver to Parent a proxy with respect to such shares, which shall be identical to the proxy in Section 2.02 above; and (ii) upon request, surrender the certificates representing the Company Shares owned of record by Stockholder, and use commercially reasonable efforts to request the certificates representing any other outstanding Company Shares Beneficially Owned by Stockholder, to be surrendered so that the transfer agent for such shares may affix thereto an appropriate legend referring to this Agreement.

 

Section 6.03.  Amendments; Termination.  Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or in the case of a waiver, by the party against whom the waiver is to be effective.  This Agreement shall terminate upon the earlier of the Effective Time or the termination or expiration of the Support Period; provided, however, that no termination of this Agreement shall relieve any party hereto from any liability for any breach of any provision of this Agreement prior to such termination.

 

Section 6.04.  Expenses.  All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.

 

Section 6.05.  Successors and Assigns.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that Stockholder may not assign, delegate or otherwise transfer any of Stockholder’s rights or obligations under this Agreement without the prior written consent of Parent.  Any assignment, delegation or transfer in violation of the foregoing shall be null and void.

 

Section 6.06.  Governing Law.  This Agreement shall be governed by and construed in accordance with and governed by the laws of the State of Delaware, without regard to the conflicts of law rules of such State that would result in the application of any law other than the law of the State of Delaware.

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Section 6.07.  Counterparts; Effectiveness.  This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in PDF form or by any other electronic means designed to preserve the original graphic and pictorial appearance of a document, will be deemed to have the same effect as physical delivery of the paper document bearing the original signatures.  This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto and the Merger Agreement has become effective.  Until and unless each party has received a counterpart hereof signed by the other party hereto and the Merger Agreement has become effective, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).

 

Section 6.08.  Severability.  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto.  Upon such a determination, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

 

Section 6.09.  Specific Performance.  The parties hereto agree that irreparable damage to Parent or Acquisition Sub would occur, damages would be incalculable and would be an insufficient remedy and no other adequate remedy would exist at law or in equity, in each case in the event that any provision of this Agreement were not performed by Stockholder in accordance with the terms hereof, and that each of Parent and Acquisition Sub shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically Stockholder’s performance of the terms and provisions hereof, in addition to any other remedy to which Parent or Acquisition Sub may be entitled at law or in equity.  Stockholder hereby waives any defenses based on the adequacy of any other remedy, whether at law or in equity, that might be asserted as a bar to the remedy of specific performance of any of the terms or provisions hereof or injunctive relief in any action brought therefor by Parent or Acquisition Sub.

 

Section 6.10.  Defined Terms.  For the purposes of this Agreement:

 

 

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Section 6.11.  Action in Stockholder’s Capacity Only.  Stockholder, if a director or officer of the Company, does not make any agreement or understanding herein as a director or officer of the Company.  Stockholder signs this Agreement solely in Stockholder’s capacity as a Beneficial Owner of the Company Shares Beneficially Owned by Stockholder, and nothing herein shall limit or affect any actions taken in Stockholder’s capacity as an officer or director of the Company, including complying with or exercising such Stockholder’s fiduciary duties as a member of the Board of Directors of the Company.

 

Section 6.12.  Notices.  All notices and other communications hereunder shall be in writing and shall be deemed to have been duly delivered and received hereunder (i) four (4) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service, or (iii) immediately upon delivery by hand or by facsimile (with a written or electronic confirmation of delivery), in each case to the intended recipient as set forth below:

 

if to Parent or Acquisition Sub, to:

The Kroger Co.

1014 Vine Street

Cincinnati, Ohio 45201

Attention: General Counsel

Facsimile No.: (513) 762-4935

with a copy to:

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY  10153

Attention: Michael J. Aiello and Matthew J. Gilroy

Facsimile No.: (212) 310-8007

if to Stockholder, to: the address for notice set forth on the signature page hereto

with a copy to:

Vitacost.com, Inc.

5400 Broken Sound Blvd. NW, Suite 500

Boca Raton, FL 33487

Attention: Chief Legal Officer

Facsimile No.: (516) 443-2627

and:

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Buchanan Ingersoll & Rooney PC

Two Liberty Place

50 S. 16th Street, Suite 3200

Philadelphia, PA 19102-2555

Attention: Brian North

Facsimile No.:  (215) 665-8760

Section 6.13.  Submission to Jurisdiction.  Each party to this Agreement hereby irrevocably and unconditionally (i) consents to the submission to the exclusive jurisdiction of the Court of Chancery of the State of Delaware sitting in Wilmington, Delaware for any Legal Proceedings arising out of or relating to this Agreement or the transactions contemplated hereby, (ii) agrees not to commence any Legal Proceeding relating thereto except in such court and in accordance with the provisions of this Agreement, (iii) agrees that service of any process, summons, notice or document by U.S. registered mail, or otherwise in the manner provided for notices in Section 6.12 hereof, shall be effective service of process for any such Legal Proceeding brought against it in any such court, (iv) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Legal Proceeding in such courts and (v) agrees not to plead or claim in any court that any such Legal Proceeding brought in any such court has been brought in an inconvenient forum.  Each of the parties hereto agrees that a final judgment in any such Legal Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Applicable Law.  Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by Applicable Law.

 

 

Section 6.15.  Rules of Construction.  The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.

 

Section 6.16.  Waiver.  No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.  A party hereto shall not be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

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Section 6.17.  No Ownership Interest.  All rights, ownership and economic benefits of and relating to the Company Shares Beneficially Owned by Stockholder at a given time shall remain vested in and belong to Stockholder as of such time, and Parent shall have no authority to exercise any power or authority to direct Stockholder in the voting of any of the Company Shares Beneficially Owned by Stockholder, except as otherwise specifically provided herein, or in the performance of Stockholder’s duties or responsibilities as a stockholder of the Company.

 

Section 6.18  Entire Agreement.  This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

 

Shares  Beneficially Owned		Shares Owned of Record		Shares subject to Company Options		Shares subject to Company Warrants
3,049,013		2,272,727		0		776,286

Signature Page to Tender and Support Agreement

 

 

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Exhibit 5

 

EXECUTION COPY

 

	if to Parent or Acquisition Sub, to:
		The Kroger Co.
		1014 Vine Street
		Cincinnati, Ohio 45201
		Attention: General Counsel
		Facsimile No.: (513) 762-4935
	with a copy to:
		Weil, Gotshal & Manges LLP
		767 Fifth Avenue
		New York, NY  10153
		Attention: Michael J. Aiello and Matthew J. Gilroy
		Facsimile No.: (212) 310-8007
	if to Stockholder, to: the address for notice set forth on the signature page hereto
	with a copy to:
		Vitacost.com, Inc.
		5400 Broken Sound Blvd. NW, Suite 500
		Boca Raton, FL 33487
		Attention: Chief Legal Officer
		Facsimile No.: (516) 443-2627
	and:
		Skadden, Arps, Slate, Meagher & Flom LLP
		Four Times Square
		New York, NY 10036
		Attention: Howard L. Ellin and Richard J. Grossman
		Facsimile No.:  (212) 735-2000

	THE KROGER CO.,
	an Ohio corporation
	By:	/s/ Christine S. Wheatley
		Name:	Christine S. Wheatley
		Title:	Group Vice President, Secretary and General Counsel

	VIGOR ACQUISITION CORP.,
	a Delaware corporation
	By:	/s/ Christine S. Wheatley
		Name:	Christine S. Wheatley
		Title:	President

	GREAT HILL INVESTORS, LLC
	By:	/s/ Michael Kumin
		Name:	Michael Kumin
		Title:	Authorized Signatory

Shares Beneficially Owned		Shares Owned of Record		Shares subject to Company Options		Shares subject to Company Warrants
19,489		18,550		0		939

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EXECUTION COPY

 

TENDER AND SUPPORT AGREEMENT

 

TENDER AND SUPPORT AGREEMENT, dated as of July 1, 2014 (this “Agreement”), among The Kroger Co., an Ohio corporation (“Parent”), Vigor Acquisition Corp., a Delaware corporation (“Acquisition Sub”), and the Person listed as “Stockholder” on the signature page hereto (“Stockholder”).

WHEREAS, as a condition and inducement to Parent’s and Acquisition Sub’s willingness to enter into an Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), with Vitacost.com, Inc. a Delaware corporation (the “Company”), Parent has requested Stockholder, and Stockholder has agreed, to enter into this Agreement with respect to all shares of common stock, par value $0.00001 per share, of the Company that Stockholder Beneficially Owns (as defined in Section 6.10 below) at any time during the Support Period (as defined in Section 6.10 below).

NOW, THEREFORE, the parties hereto agree as follows:

 

Section 1.01  Tender of Shares.  Stockholder agrees: (i) to promptly (and, in any event, not later than five (5) Business Days after commencement of the Offer) validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer and Rule 14d-2 under the Exchange Act, all of the outstanding Company Shares Beneficially Owned by Stockholder (free and clear of any Liens or restrictions, except for any applicable restrictions on transfer under the Securities Act and the rules and regulations promulgated thereunder that would not in any event prevent Stockholder from tendering Stockholder’s Company Shares in accordance with this Agreement or otherwise complying with Stockholder’s obligations under this Agreement); and (ii) if Stockholder acquires Beneficial Ownership of any additional outstanding Company Shares during the Support Period, to promptly (and, in any event, not later than three (3) Business Days after Stockholder acquires Beneficial Ownership of such additional outstanding Company Shares) validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer, all of such additional Company Shares (free and clear of any Liens or restrictions, except for any applicable restrictions on transfer under the Securities Act and the rules and regulations promulgated thereunder that would not in any event prevent Stockholder from tendering Stockholder’s Company Shares in accordance with this Agreement or otherwise complying with Stockholder’s obligations under this Agreement).  Notwithstanding anything in this Agreement to the contrary, nothing herein shall require Stockholder to exercise any Company Option or other equity award or require Stockholder to purchase any Company Shares pursuant to any Company Warrant or otherwise, and nothing herein shall prohibit Stockholder from exercising any Company Option or Company Warrants held by such Stockholder as of the date of this Agreement.

Section 1.02  No Withdrawal.  Stockholder agrees not to withdraw, and not to cause or permit to be withdrawn, any Company Shares from the Offer unless and until (i) the Offer expires without Acquisition Sub having accepted for payment any Company Shares tendered in the Offer or (ii) termination of this Agreement in accordance with Section 6.03 hereof.

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Section 1.03  Conditional Obligation.  Stockholder acknowledges and agrees that Acquisition Sub’s obligation to accept for payment Company Shares tendered into the Offer, including any Company Shares tendered by Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.

 

Section 2.01.  Voting Agreement.  Stockholder hereby agrees that, during the Support Period, Stockholder will not vote any outstanding Company Shares Beneficially Owned by Stockholder in favor of, or consent to, and will vote against and not consent to, the approval of any (i) Acquisition Proposal, (ii) reorganization, recapitalization, dissolution, liquidation or winding-up of the Company or any other extraordinary transaction involving the Company other than the Merger, (iii) corporate action the consummation of which would frustrate the purposes, or prevent or materially delay the consummation, of any of the transactions contemplated by the Merger Agreement or (iv) other matter relating to, or in connection with, any of the foregoing matters. Stockholder shall use its commercially reasonable efforts to ensure that, during the Support Period, any other Person having voting power with respect to any outstanding Company Shares Beneficially Owned by Stockholder will not vote any such shares in favor of or consent to, and will vote against, the approval of the matters described in clauses (i) through (iv) of the preceding sentence.

Section 2.02.  Irrevocable Proxy.  Stockholder hereby revokes (or agrees to cause to be revoked) any and all previous proxies granted with respect to the outstanding Company Shares Beneficially Owned by Stockholder.  By entering into this Agreement, Stockholder hereby grants a proxy appointing Parent as Stockholder’s attorney-in-fact and proxy, with full power of substitution, for and in Stockholder’s name, to vote, express consent or dissent, or otherwise to utilize such voting power in the manner contemplated by Section 2.01 above as Parent or its proxy or substitute shall, in Parent’s sole discretion, deem proper with respect to the outstanding Company Shares Beneficially Owned by Stockholder.  The proxy granted by Stockholder pursuant to this Article 2 is irrevocable and is granted in consideration of Parent and Acquisition Sub entering into this Agreement and the Merger Agreement and incurring certain related fees and expenses.  The proxy granted by Stockholder shall not be exercised to vote, consent or act on any matter except as contemplated by Section 2.01 above.  The proxy granted by Stockholder shall be revoked, terminated and of no further force or effect, automatically and without further action, upon termination of this Agreement in accordance with Section 6.03 hereof.

Stockholder represents and warrants to Parent that:

Section 3.01.  Authorization.  The execution, delivery and performance by Stockholder of this Agreement and the consummation by Stockholder of the transactions contemplated hereby are within the powers of Stockholder and, if applicable, have been duly authorized by all necessary corporate, company, partnership or other action.  This Agreement constitutes a legal, valid and binding agreement of Stockholder, enforceable against Stockholder in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, moratorium or similar law affecting creditors’ rights generally, to rules of law governing specific performance, injunctive relief and other equitable remedies, to approval by the Company Board of this Agreement and the Merger Agreement and the transactions contemplated hereby and thereby for purposes of Section 203 of the DGCL and to the federal securities laws and rules promulgated thereunder, including but not limited to, any withdrawal rights under the tender offer rules.  If this Agreement is being executed in representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into and perform this Agreement.

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Section 3.02.  Non-Contravention.  The execution, delivery and performance by Stockholder of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) violate the certificate of incorporation or bylaws, or other comparable charter or organizational documents, of Stockholder, if any, (ii) violate any Applicable Law, (iii) conflict with or violate or require any consent, approval, notice or other action by any Person under, constitute a default (with or without notice or lapse of time or both) under, or give rise to any right of termination, cancellation or acceleration or to a loss of any benefit to which Stockholder is entitled under any provision of any Contract binding on Stockholder or any of Stockholder’s properties or assets, including the Company Shares Beneficially Owned by Stockholder or (iv) result in the imposition of any Lien on any asset of Stockholder.

Section 3.03.  Ownership of Shares.  Stockholder is the Beneficial Owner of the Company Shares set forth on the signature page hereto opposite such Stockholder’s name, free and clear of any Lien and any other limitation or restriction (including any restriction on the right to vote or otherwise dispose of the Company Shares Beneficially Owned by Stockholder), except for any applicable restrictions on transfer under the Securities Act and the rules and regulations promulgated thereunder that would not in any event prevent Stockholder from tendering Stockholder’s Company Shares in accordance with this Agreement or otherwise complying with Stockholder’s obligations under this Agreement.

Section 3.04.  Total Shares.  Except for the Company Shares set forth on the signature page hereto, Stockholder does not Beneficially Own any (i) shares of capital stock or voting securities of the Company or (ii) options, warrants or other rights to acquire, or securities convertible into or exchangeable for (in each case, whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing), any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company.

Section 3.05.  Finder’s Fees.  No investment banker, broker, finder or other intermediary is entitled to a fee or commission from Parent, Acquisition Sub or the Company in respect of this Agreement based upon any Contract made by or on behalf of Stockholder solely in Stockholder’s capacity as a stockholder of the Company.

Section 3.06.  No Litigation.  As of the date of this Agreement, there is no suit, claim, action, investigation or other Proceeding pending or, to the knowledge of Stockholder, threatened against Stockholder at law or in equity before or by any Governmental Authority that could reasonably be expected to impair the ability of Stockholder to perform Stockholder’s obligations hereunder or consummate the transactions contemplated hereby.

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Parent and Acquisition Sub represent and warrant to Stockholder:

Section 4.01.  Corporation Authorization.  The execution, delivery and performance by Parent and Acquisition Sub of this Agreement and the consummation by Parent and Acquisition Sub of the transactions contemplated hereby are within the corporate powers of Parent and the corporate powers of Acquisition Sub and have been duly authorized by all necessary corporate action.  This Agreement constitutes a valid and binding agreement of Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, moratorium or similar law affecting creditors’ rights generally and to rules of law governing specific performance, injunctive relief and other equitable remedies.

 

Stockholder hereby covenants and agrees that:

Section 5.01.  No Proxies for, Encumbrances on or Disposition of Shares.  During the Support Period, except pursuant to the terms of this Agreement, Stockholder shall not, without the prior written consent of Parent, directly or indirectly, (a) grant any proxies, or enter into any voting trust or other Contract, with respect to the voting of any Company Shares Beneficially Owned by Stockholder, (b) sell, assign, transfer, tender, encumber or otherwise dispose of, or enter into any Contract with respect to the direct or indirect sale, assignment, transfer, tender, encumbrance or other disposition of, any such Company Shares or (c) take any other action that would make any representation or warranty of Stockholder contained herein untrue or incorrect in any material respect or in any way restrict, limit or interfere in any material respect with the performance of Stockholder’s obligations hereunder or the transactions contemplated hereby or by the Merger Agreement, or seek to do or solicit any of the foregoing actions, or cause or permit any other Person to take any of the foregoing actions, and agrees to notify Parent and Acquisition Sub promptly, and to provide all material details reasonably requested by Parent or Acquisition Sub, if Stockholder shall be approached or solicited, directly or indirectly, by any Person with respect to any of the foregoing.  Without limiting the generality of the foregoing, during the Support Period, Stockholder shall not tender, agree to tender or cause or permit to be tendered any Company Shares Beneficially Owned by Stockholder into or otherwise in connection with any tender or exchange offer, except pursuant to the Offer.  Notwithstanding the foregoing, Stockholder may transfer Company Shares held by Stockholder to a trust for the benefit of Stockholder; provided that a transfer referred to in this sentence shall be permitted only if, as a precondition to such transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be bound by all of the terms of this Agreement.

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Section 5.02.  Other Offers.  Neither Stockholder (in Stockholder’s capacity as such), nor any of Stockholder’s Subsidiaries, if any, shall, nor shall Stockholder or any of Stockholder’s Subsidiaries, if any, authorize or permit any of its or their respective Representatives to, and Stockholder shall instruct, and cause each applicable Subsidiary of Stockholder to instruct, each such Representative not to, directly or indirectly, take any of the following actions: (i) solicit, initiate, cause or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, an Acquisition Proposal; (ii) furnish to any Person (other than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case with the intent to induce the making, submission or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal; or (iv) enter into any Contract contemplating or otherwise relating to an Acquisition Transaction.  Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by any Subsidiary of Stockholder or Representatives of Stockholder or any of its Subsidiaries shall be deemed to be a breach of this Section 5.02 by Stockholder.  Stockholder shall, and shall cause its Subsidiaries and its and their respective Representatives to immediately cease any and all existing discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal, and shall request the return from all such Persons or the destruction by such Persons of all copies of confidential information previously provided to such Persons by Stockholder, its Subsidiaries or Representatives.  Stockholder shall promptly notify Parent if it becomes aware of any receipt by Stockholder, its Subsidiaries or Representatives of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, the terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the Person or group making any such Acquisition Proposal, request or inquiry (and shall include with such notice copies of any written materials received from or on behalf of such Person relating to such Acquisition Proposal).  Stockholder shall keep Parent reasonably informed of the status and material terms of any such Acquisition Proposal known to Stockholder, request or inquiry (and Stockholder shall provide Parent with copies of any additional written materials received by it that relate to such Acquisition Proposal, inquiry or request).  Notwithstanding the foregoing, nothing herein shall limit or affect any actions taken by Stockholder (or any affiliated officer or director of the Company) in compliance with the Merger Agreement, including taking any of the foregoing actions that would be permitted to be taken by the Company pursuant to the Merger Agreement.

 

Section 5.03.  Communications.  Stockholder, and each of Stockholder’s Subsidiaries, if any, shall not, and shall cause their respective officers, directors, employees or other Representatives, if any, not to, directly or indirectly, make any press release, public announcement or other public communication that criticizes or disparages this Agreement or the Merger Agreement or any of the transactions contemplated hereby and thereby, without the prior written consent of Parent.  Stockholder hereby (i) consents to and authorizes the publication and disclosure by Parent, Acquisition Sub and the Company (including in the Schedule TO, the Schedule 14D-9 or any other publicly filed documents relating to the Merger, the Offer or any other transaction contemplated by the Merger Agreement) of: (a) Stockholder’s identity; (b) Stockholder’s Beneficial Ownership of Company Shares; and (c) the nature of Stockholder’s commitments, arrangements and understandings under this Agreement, and any other information that Parent, Acquisition Sub or the Company determines to be necessary in any SEC disclosure document in connection with the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement and (ii) agrees as promptly as practicable to notify Parent, Acquisition Sub and the Company of any required corrections with respect to any written information supplied by Stockholder specifically for use in any such disclosure document.  Notwithstanding the foregoing, nothing herein shall limit or affect any actions taken by Stockholder (or any affiliated officer or director of the Company) in compliance with the Merger Agreement.

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Section 5.04.  Additional Shares.  In the event that Stockholder acquires Beneficial Ownership of, or the power to dispose of or vote or direct the disposition or voting of, any additional Company Shares or other interests in or with respect to the Company, such Company Shares or other interests shall, without further action of the parties, be subject to the provisions of this Agreement, and the number of Company Shares Beneficially Owned by Stockholder set forth on the signature page hereto will be deemed amended accordingly.  Stockholder shall promptly notify Parent and Acquisition Sub of any such event.

Section 5.05.  Waiver of Appraisal and Dissenters’ Rights and Actions.  Stockholder hereby (i) waives and agrees not to exercise any rights (including under Section 262 of the General Corporation Law of the State of Delaware) to demand appraisal of any Company Shares Beneficially Owned by Stockholder or rights to dissent from the Merger which may arise with respect to the Merger and (ii) agrees not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or other Proceeding, against Parent, Acquisition Sub, the Company or any of their respective successors relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the making or consummation of the Offer or consummation of the Merger, including any Proceeding (x) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (y) alleging a breach of any fiduciary duty of the Board of Directors of the Company in connection with the Merger Agreement or the transactions contemplated thereby.

 

 

Section 6.01.  Other Definitional and Interpretative Provisions.  Unless specified otherwise, in this Agreement the obligations of any party hereto consisting of more than one Person are joint and several.  The words “hereof,” “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.  References to Articles and Sections are to Articles and Sections of this Agreement unless otherwise specified.  Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import.  The word “or” has the inclusive meaning represented by the phrase “and/or.”  “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form.  References to any Contract (including the Merger Agreement) are to that Contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.  References to any Person include the successors and permitted assigns of that Person.  References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.

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Section 6.02.  Further Assurances.  Stockholder shall, to the extent requested by Parent, promptly: (i) use commercially reasonable efforts to cause each other Person having voting power with respect to any Company Shares Beneficially Owned by Stockholder to execute and deliver to Parent a proxy with respect to such shares, which shall be identical to the proxy in Section 2.02 above; and (ii) upon request, surrender the certificates representing the Company Shares owned of record by Stockholder, and use commercially reasonable efforts to request the certificates representing any other outstanding Company Shares Beneficially Owned by Stockholder, to be surrendered so that the transfer agent for such shares may affix thereto an appropriate legend referring to this Agreement.

Section 6.03.  Amendments; Termination.  Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or in the case of a waiver, by the party against whom the waiver is to be effective.  This Agreement shall terminate upon the earlier of the Effective Time or the termination or expiration of the Support Period; provided, however, that no termination of this Agreement shall relieve any party hereto from any liability for any breach of any provision of this Agreement prior to such termination.

Section 6.04.  Expenses.  All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.

Section 6.05.  Successors and Assigns.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that Stockholder may not assign, delegate or otherwise transfer any of Stockholder’s rights or obligations under this Agreement without the prior written consent of Parent.  Any assignment, delegation or transfer in violation of the foregoing shall be null and void.

Section 6.06.  Governing Law.  This Agreement shall be governed by and construed in accordance with and governed by the laws of the State of Delaware, without regard to the conflicts of law rules of such State that would result in the application of any law other than the law of the State of Delaware.

 

Section 6.07.  Counterparts; Effectiveness.  This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in PDF form or by any other electronic means designed to preserve the original graphic and pictorial appearance of a document, will be deemed to have the same effect as physical delivery of the paper document bearing the original signatures.  This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto and the Merger Agreement has become effective.  Until and unless each party has received a counterpart hereof signed by the other party hereto and the Merger Agreement has become effective, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).

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Section 6.08.  Severability.  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto.  Upon such a determination, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

Section 6.09.  Specific Performance.  The parties hereto agree that irreparable damage to Parent or Acquisition Sub would occur, damages would be incalculable and would be an insufficient remedy and no other adequate remedy would exist at law or in equity, in each case in the event that any provision of this Agreement were not performed by Stockholder in accordance with the terms hereof, and that each of Parent and Acquisition Sub shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically Stockholder’s performance of the terms and provisions hereof, in addition to any other remedy to which Parent or Acquisition Sub may be entitled at law or in equity.  Stockholder hereby waives any defenses based on the adequacy of any other remedy, whether at law or in equity, that might be asserted as a bar to the remedy of specific performance of any of the terms or provisions hereof or injunctive relief in any action brought therefor by Parent or Acquisition Sub.

Section 6.10.  Defined Terms.  For the purposes of this Agreement:

 

 

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Section 6.11.  Action in Stockholder’s Capacity Only.  Stockholder, if a director or officer of the Company, does not make any agreement or understanding herein as a director or officer of the Company.  Stockholder signs this Agreement solely in Stockholder’s capacity as a Beneficial Owner of the Company Shares Beneficially Owned by Stockholder, and nothing herein shall limit or affect any actions taken in Stockholder’s capacity as an officer or director of the Company, including complying with or exercising such Stockholder’s fiduciary duties as a member of the Board of Directors of the Company.

Section 6.12.  Notices.  All notices and other communications hereunder shall be in writing and shall be deemed to have been duly delivered and received hereunder (i) four (4) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service, or (iii) immediately upon delivery by hand or by facsimile (with a written or electronic confirmation of delivery), in each case to the intended recipient as set forth below:

	if to Parent or Acquisition Sub, to:
		The Kroger Co.
		1014 Vine Street
		Cincinnati, Ohio 45201
		Attention: General Counsel
		Facsimile No.: (513) 762-4935
	with a copy to:
		Weil, Gotshal & Manges LLP
		767 Fifth Avenue
		New York, NY  10153
		Attention: Michael J. Aiello and Matthew J. Gilroy
		Facsimile No.: (212) 310-8007
	if to Stockholder, to: the address for notice set forth on the signature page hereto
	with a copy to:
		Vitacost.com, Inc.
		5400 Broken Sound Blvd. NW, Suite 500
		Boca Raton, FL 33487
		Attention: Chief Legal Officer
		Facsimile No.: (516) 443-2627

 

	and:
		Skadden, Arps, Slate, Meagher & Flom LLP
		Four Times Square
		New York, NY 10036
		Attention: Howard L. Ellin and Richard J. Grossman
		Facsimile No.:  (212) 735-2000

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Section 6.13.  Submission to Jurisdiction.  Each party to this Agreement hereby irrevocably and unconditionally (i) consents to the submission to the exclusive jurisdiction of the Court of Chancery of the State of Delaware sitting in Wilmington, Delaware for any Legal Proceedings arising out of or relating to this Agreement or the transactions contemplated hereby, (ii) agrees not to commence any Legal Proceeding relating thereto except in such court and in accordance with the provisions of this Agreement, (iii) agrees that service of any process, summons, notice or document by U.S. registered mail, or otherwise in the manner provided for notices in Section 6.12 hereof, shall be effective service of process for any such Legal Proceeding brought against it in any such court, (iv) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Legal Proceeding in such courts and (v) agrees not to plead or claim in any court that any such Legal Proceeding brought in any such court has been brought in an inconvenient forum.  Each of the parties hereto agrees that a final judgment in any such Legal Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Applicable Law.  Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by Applicable Law.

Section 6.15.  Rules of Construction.  The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.

Section 6.16.  Waiver.  No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.  A party hereto shall not be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

Section 6.17.  No Ownership Interest.  All rights, ownership and economic benefits of and relating to the Company Shares Beneficially Owned by Stockholder at a given time shall remain vested in and belong to Stockholder as of such time, and Parent shall have no authority to exercise any power or authority to direct Stockholder in the voting of any of the Company Shares Beneficially Owned by Stockholder, except as otherwise specifically provided herein, or in the performance of Stockholder’s duties or responsibilities as a stockholder of the Company.

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Section 6.18  Entire Agreement.  This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

	THE KROGER CO.,
	an Ohio corporation
	By:	/s/ Christine S. Wheatley
		Name:	Christine S. Wheatley
		Title:	Group Vice President, Secretary and General Counsel

	VIGOR ACQUISITION CORP.,
	a Delaware corporation
	By:	/s/ Christine S. Wheatley
		Name:	Christine S. Wheatley
		Title:	President

	GREAT HILL EQUITY PARTNERS III, L.P.:
	By: GREAT HILL PARTNERS GP III,
	L.P., its General Partner
	By: GHP III, LLC, its General Partner
	By:	/s/ Michael Kumin
		Name:	Michael Kumin
		Title:	Authorized Signatory

 

Shares Beneficially Owned		Shares Owned of Record		Shares subject to Company Options		Shares subject to Company Warrants
4,398,828		4,161,898		26,241		210,689

 

Signature Page to Tender and Support Agreement

 

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Exhibit 7

 

	if to Parent or Acquisition Sub, to:
		The Kroger Co.
		1014 Vine Street
		Cincinnati, Ohio 45201
		Attention: General Counsel
		Facsimile No.: (513) 762-4935
	with a copy to:
		Weil, Gotshal & Manges LLP
		767 Fifth Avenue
		New York, NY  10153
		Attention: Michael J. Aiello and Matthew J. Gilroy
		Facsimile No.: (212) 310-8007
	if to Stockholder, to: the address for notice set forth on the signature page hereto
	with a copy to:
		Vitacost.com, Inc.
		5400 Broken Sound Blvd. NW, Suite 500
		Boca Raton, FL 33487
		Attention: Chief Legal Officer
		Facsimile No.: (516) 443-2627
	and:
		Skadden, Arps, Slate, Meagher & Flom LLP
		Four Times Square
		New York, NY 10036
		Attention: Howard L. Ellin and Richard J. Grossman
		Facsimile No.:  (212) 735-2000

	THE KROGER CO.,
	an Ohio corporation
	By:	/s/ Christine S. Wheatley
		Name:	Christine S. Wheatley
		Title:	Group Vice President, Secretary and General Counsel

	VIGOR ACQUISITION CORP.,
	a Delaware corporation
	By:	/s/ Christine S. Wheatley
		Name:	Christine S. Wheatley
		Title:	President

	GREAT HILL EQUITY PARTNERS IV, L.P.:
	By: GREAT HILL PARTNERS GP IV, L.P., its General Partner
	By: GHP IV, LLC, its General Partner
	By:	/s/ Michael Kumin
		Name:	Michael Kumin
		Title:	Authorized Signatory

Shares Beneficially Owned		Shares Owned of Record		Shares subject to Company Options		Shares subject to Company Warrants
2,306,497		2,182,265		13,759		110,473