SC 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OjA/nnI93Xy4PsYdj563wo4JsYFRnc22eY0zTXeP9HlBSx8vvPZVKfmVTaX9C+86 41ywRK7B8lSuN+SpXO8V7A== 0001193125-10-063779.txt : 20100323 0001193125-10-063779.hdr.sgml : 20100323 20100323085452 ACCESSION NUMBER: 0001193125-10-063779 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20100323 DATE AS OF CHANGE: 20100323 GROUP MEMBERS: CHRISTOPHER GAFFNEY GROUP MEMBERS: GHP III, LLC GROUP MEMBERS: GHP IV, LLC GROUP MEMBERS: GREAT HILL EQUITY PARTNERS III, L.P. GROUP MEMBERS: GREAT HILL EQUITY PARTNERS IV, L.P. GROUP MEMBERS: GREAT HILL PARTNERS GP III, L.P. GROUP MEMBERS: GREAT HILL PARTNERS GP IV, L.P. GROUP MEMBERS: JOHN G. HAYES GROUP MEMBERS: MATTHEW T. VETTEL SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Vitacost.com, Inc. CENTRAL INDEX KEY: 0001401688 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-CATALOG & MAIL-ORDER HOUSES [5961] IRS NUMBER: 371333024 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-85269 FILM NUMBER: 10698002 BUSINESS ADDRESS: STREET 1: 5400 BROKEN SOUND BLVD NW STREET 2: SUITE 500 CITY: BOCA RATON STATE: FL ZIP: 33487-3521 BUSINESS PHONE: (561) 982-4180 MAIL ADDRESS: STREET 1: 5400 BROKEN SOUND BLVD NW STREET 2: SUITE 500 CITY: BOCA RATON STATE: FL ZIP: 33487-3521 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GREAT HILL INVESTORS LLC CENTRAL INDEX KEY: 0001161866 IRS NUMBER: 043463163 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: ONE LIBERTY SQ CITY: BOSTON STATE: MA ZIP: 02109 BUSINESS PHONE: 617-790-9430 MAIL ADDRESS: STREET 1: ONE LIBERTY SQ CITY: BOSTON STATE: MA ZIP: 02109 SC 13D 1 dsc13d.htm SC 13D SC 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. )*

Vitacost.com, Inc.

(Name of Issuer)

Common Stock, $0.00001 par value per share

(Title of Class of Securities)

92847A20 0

(CUSIP Number)

Great Hill Partners

Attn: Laurie T. Gerber

One Liberty Square, Boston, MA 02109

(617) 790-9430

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

March 23, 2010

(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 that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 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 purpose of Section 18 of the Securities Exchange Act of 1934, as amended (“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).

SCHEDULE 13D

CUSIP No. 92847A20 0


1.	Names of Reporting Persons. Great Hill Investors, LLC
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC
5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Massachusetts


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7. Sole Voting Power 0
		8. Shared Voting Power 15,801
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 15,801


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 15,801
12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 0.06%
14.	Type of Reporting Person (See Instructions) OO

SCHEDULE 13D

CUSIP No. 92847A20 0


1.	Names of Reporting Persons. Great Hill Equity Partners III, L.P.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC
5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7. Sole Voting Power 0
		8. Shared Voting Power 3,545,064
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 3,545,064


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 3,545,064
12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 12.90%
14.	Type of Reporting Person (See Instructions) PN

SCHEDULE 13D

CUSIP No. 92847A20 0


1.	Names of Reporting Persons. Great Hill Partners GP III, L.P.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC
5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7. Sole Voting Power 3,545,064
		8. Shared Voting Power 0
		9. Sole Dispositive Power 3,545,064
		10. Shared Dispositive Power 0


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 3,545,064
12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 12.90%
14.	Type of Reporting Person (See Instructions) PN

SCHEDULE 13D

CUSIP No. 92847A20 0


1.	Names of Reporting Persons. GHP III, LLC
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC
5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7. Sole Voting Power 0
		8. Shared Voting Power 3,545,064
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 3,545,064


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 3,545,064
12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 12.90%
14.	Type of Reporting Person (See Instructions) OO

SCHEDULE 13D

CUSIP No. 92847A20 0


1.	Names of Reporting Persons. Great Hill Equity Partners IV, L.P.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC
5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7. Sole Voting Power 0
		8. Shared Voting Power 1,858,832
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 1,858,832


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 1,858,832
12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 6.76%
14.	Type of Reporting Person (See Instructions) PN

SCHEDULE 13D

CUSIP No. 92847A20 0


1.	Names of Reporting Persons. Great Hill Partners GP IV, L.P.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC.
5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7. Sole Voting Power 0
		8. Shared Voting Power 1,858,832
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 1,858,832


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 1,858,832
12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 6.76%
14.	Type of Reporting Person (See Instructions) PN

SCHEDULE 13D

CUSIP No. 92847A20 0


1.	Names of Reporting Persons. GHP IV, LLC
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC
5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7. Sole Voting Power 0
		8. Shared Voting Power 1,858,832
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 1,858,832


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 1,858,832
12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 6.76%
14.	Type of Reporting Person (See Instructions) OO

SCHEDULE 13D

CUSIP No. 92847A20 0


1.	Names of Reporting Persons. Matthew T. Vettel
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC
5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization United States of America


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7. Sole Voting Power 0
		8. Shared Voting Power 5,403,896
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 5,403,896


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 5,403,896
12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 19.66%
14.	Type of Reporting Person (See Instructions) IN

SCHEDULE 13D

CUSIP No. 92847A20 0


1.	Names of Reporting Persons. Christopher S. Gaffney
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC
5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization United States of America


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7. Sole Voting Power 0
		8. Shared Voting Power 5,419,697
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 5,419,697


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 5,419,697
12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 19.72%
14.	Type of Reporting Person (See Instructions) IN

SCHEDULE 13D

CUSIP No. 92847A20 0


1.	Names of Reporting Persons. John G. Hayes
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC
5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization United States of America


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7. Sole Voting Power 0
		8. Shared Voting Power 5,419,697
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 5,419,697


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 5,419,697
12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 19.72%
14.	Type of Reporting Person (See Instructions) IN

Item 1.

Security and Issuer

This Statement on Schedule 13D (the “Schedule 13D”) relates to the common stock, $0.00001 par value per share (the “Common Stock”), of Vitacost.com, Inc., a Delaware corporation (the “Issuer”). The address of the principal executive offices of the Issuer is 5400 Broken Sound Blvd. NW – Suite 500, Boca Raton, FL 33487-3521.

Item 2.

Identity and Background

This Schedule 13D is being filed on behalf of the following individuals and entities (the “Reporting Persons”): (i) Great Hill Investors, LLC, a Massachusetts limited liability company (“GHI”); (ii) Great Hill Equity Partners III, L.P., a Delaware limited partnership (“GHEP III”); (iii) Great Hill Equity Partners IV, L.P., a Delaware limited partnership (“GHEP IV,” together with GHI and GHEP III, the “Funds”); (iv) Great Hill Partners GP III, L.P., a Delaware limited partnership (“GHEPIIIGP”); (v) GHP III, LLC, a Delaware limited liability company (“GHPIII”); (vi) Great Hill Partners GP IV, L.P., a Delaware limited partnership (“GHEPIVGP”); (vii) GHP IV, LLC, a Delaware limited liability company (“GHPIV,” together with the Funds, GHEPIIIGP, GHPIII, and GHEPIVGP, the “Great Hill Entities” ); (viii) Christopher S. Gaffney (“Gaffney”); (ix) Matthew T. Vettel (“Vettel”); and (x) John G. Hayes (“Hayes,” together with Gaffney and Vettel, the “Controlling Persons”). Each Controlling Person is a citizen of the United States.

Each Fund is an investment fund, principally engaged in the business of making private equity and other investments. GHEPIIIGP, GHPIII, GHEPIVGP and GHPIV are principally engaged in the business of acting as general partner or other authorized person of, investment funds engaged in private equity and other investments. GHEPIIIGP is the sole general partner of GHEP III and GHPIII is the sole general partner of GHEPIIIGP. GHEPIVGP is the sole general partner of GHEP IV and GHPIV is the sole general partner of GHEPIVGP. Hayes and Gaffney are managers of GHI, GHPIII and GHPIV and the principal occupation of Hayes and Gaffney is to act as managers of GHI, GHPIII and GHPIV. Vettel is a manager of GHPIII and GHPIV and the principal occupation of Vettel is to act as a manager of GHPIII and GHPIV The principal business office of the Great Hill Entities and the Controlling Persons is c/o Great Hill Partners, LLC, One Liberty Square, Boston, Massachusetts 02109.

No Reporting Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

No Reporting Person has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction which resulted in 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.

Item 3.

Source and Amount of Funds or Other Consideration

As more fully described in Item 6 hereof, the Funds entered into the Stock Purchase Agreements (as defined below), pursuant to which the Funds acquired, in the aggregate, 5,419,697 shares of Common Stock, for aggregate consideration of $60,971,591.25. The funds for the purchase of such securities were obtained from the general working capital of the Great Hill Entities.

Copies of the Stock Purchase Agreements (as defined below) are filed as Exhibits 1 through 3 hereto. The descriptions herein of the Stock Purchase Agreements are qualified in their entirety by reference to such agreements.

Item 4.

Purpose of Transaction

The information set forth or incorporated in Items 3 and 6 hereof is incorporated herein by reference.

On March 23, 2010, the Funds acquired beneficial ownership of an aggregate of 5,419,697 shares of Common Stock for an aggregate purchase price of $60,971,591.25 (the “Investment”) in three separate privately negotiated transactions, including the purchase of 4,787,788 shares of Common Stock from Wayne Gorsek, former Co-Founder and Chief Operations Architect, each as described in Item 6 hereof.

The Funds acquired the shares because the Reporting Persons favorably regard the overall business operations and long-term prospects of the Issuer and are supportive of the Issuer’s ongoing efforts to grow the business. The Reporting Persons intend to review

the Funds’ Investment in the Issuer on an ongoing basis. Depending on their review and evaluation of the business and prospects of the Issuer, applicable securities laws and the price level of the Common Stock, or such other factors as they may deem relevant, the Reporting Persons may acquire additional shares of Common Stock or other securities of the Issuer, may sell all or any part of their Common Stock pursuant to Rule 144, in privately negotiated transactions or in sales registered or exempt from registration under the Securities Act of 1933 (the “Securities Act”), may distribute Common Stock to various of their partners or may engage in any combination of the foregoing. Subject to applicable law, the Funds may enter into derivative transactions, hedging transactions or alternative structures with respect to the Common Stock. Any open market or privately negotiated purchases, sales, distributions or other transactions may be made at any time without additional prior notice. Any alternative that the Funds may pursue will depend upon a variety of factors, including without limitation, current and anticipated future trading prices of the Common Stock, the financial condition, results of operations and prospects of the Issuer, general economic, financial market and industry conditions, other investment and business opportunities available to the Funds, tax considerations and other factors.

As a result of the Reporting Persons’ continuous review and evaluation of the business of the Issuer, the Reporting Persons may communicate with the Issuer’s Board of Directors (the “Board”), members of management and/or other stockholders from time to time with respect to operational, strategic, financial or governance matters or otherwise work with management and the Board with a view to maximizing stockholder value. In furtherance thereof, the Reporting Persons may seek, on behalf of the Funds, rights of communication and participation with the Issuer and its Board, including Board representation. In this regard, the Reporting Persons have had discussions with the Issuer about obtaining certain Board nomination rights and other communication and participation rights for the Funds for as long as the Investment is maintained at a specified level, in exchange for various agreements by the Funds. As of the date hereof, no such agreement has been reached on these matters.

Other than as described in this Item 4, none of the Reporting Persons, nor, to the knowledge of each Reporting Person, any individuals listed in response to Item 2 hereof, has any current plans or proposals that relate to or that would result in any of the transactions or other matters specified in clauses (a) through (j) of Item 4 of Schedule 13D; provided, that the Reporting Persons may, at any time, review or reconsider their position with respect to the Issuer and reserve the right to develop such plans or proposals.

Item 5.

Interest in Securities of the Issuer

(a) Based upon the number of shares of Common Stock outstanding as of October 31, 2009 as reported in the Issuer’s Quarterly Report on Form 10-Q filed on November 16, 2009: (i) GHI directly beneficially owns an aggregate of 15,801 shares of Common Stock, representing 0.06% of the shares of Common Stock; (ii) GHEP III directly beneficially owns an aggregate of 3,545,064 shares of Common Stock, representing approximately 12.90% of the shares of Common Stock; (iii) GHEP IV directly beneficially owns an aggregate of 1,858,832 shares of Common Stock, representing approximately 6.76% of the shares of Common Stock; (iv) GHEPIIIGP may be deemed to indirectly beneficially own the Common Stock beneficially owned by GHEP III, representing approximately 12.90% of the shares of Common Stock; (v) GHPIII may be deemed to indirectly beneficially own the Common Stock beneficially owned by GHEP III and that may be deemed indirectly beneficially owned by GHEPIIIGP, representing approximately 12.90% of the shares of Common Stock; (vi) GHEPIVGP may be deemed to indirectly beneficially own the Common Stock beneficially owned by GHEP IV, representing approximately 6.76% of the shares of Common Stock; (vii) GHPIV may be deemed to indirectly beneficially own the Common Stock beneficially owned by GHEP IV and that may be deemed indirectly beneficially owned by GHEPIVGP, representing approximately 6.76% of the shares of Common Stock; (v) each of Hayes and Gaffney may be deemed to indirectly beneficially own the shares of Common Stock beneficially owned by GHI, GHPIII and GHPIV, representing approximately 19.72% of the Common Stock; and (vi)Vettel may be deemed to indirectly beneficially own the shares of Common Stock beneficially owned by GHPIII and GHPIV, representing approximately 19.66% of the Common Stock. Each Controlling Person, GHI, GHPIII and GHPIV disclaims beneficial ownership of the Common Stock and the filing of this Schedule 13D shall not be construed as an admission that any such person is, for the purposes of Section 13(d) or Section 13(g) of the Act, the beneficial owner of the Common Stock.

(b) GHI directly has the power to vote, direct the vote, dispose and direct the disposition of 15,801 shares of Common Stock. GHEP III directly has the power to vote, direct the vote, dispose and direct the disposition of 3,545,064 shares of Common Stock. GHEP IV directly has the power to vote, direct the vote, dispose and direct the disposition of 1,858,832 shares of Common Stock. GHEPIIIGP indirectly has the power to vote, direct the vote, dispose and direct the disposition of 3,545,064 shares of Common Stock. GHPIII indirectly has the power to vote, direct the vote, dispose and direct the disposition of 3,545,064 shares of Common Stock. GHEPIVGP indirectly has the power to vote, direct the vote, dispose and direct the disposition of 1,858,832 shares of Common Stock. GHPIV indirectly has the power to vote, direct the vote, dispose and direct the disposition of 1,858,832 shares of Common Stock Hayes and Gaffney indirectly have the power to vote, direct the vote, dispose of and direct the disposition of 5,419,697 shares of Common Stock. Vettel indirectly has the power to vote, direct the vote, dispose of and direct the disposition of 5,403,896 shares of Common Stock.

(c) Except for the information set forth herein or incorporated by reference herein or in Items 3, 4 and 6, which is incorporated herein by reference, none of the Reporting Persons has effected any transaction relating to the Common Stock during the past 60 days.

(d) Each limited partner of GHEP III has the right to receive dividends from, or proceeds from the sale of, investments by GHEP III, including the Common Stock, in accordance with their limited partnership interests in GHEP III and subject to the terms and conditions of GHEP III’s limited partnership agreement. Each limited partner of GHEP IV has the right to receive dividends from, or proceeds from the sale of, investments by GHEP IV, including the Common Stock, in accordance with their limited partnership interests in GHEP IV and subject to the terms and conditions of GHEP IV’s limited partnership agreement. Each limited partner of GHEPIIIGP has the right to receive dividends from, or proceeds from the sale of, investments by GHEPIIIGP, including the Common Stock, in accordance with their limited partnership interests in GHEPIIIGP and subject to the terms and conditions of GHEPIIIGP’s limited partnership agreement. Each limited partner of GHEPIVGP has the right to receive dividends from, or proceeds from the sale of, investments by GHEPIVGP, including the Common Stock, in accordance with their limited partnership interests in GHEPIVGP and subject to the terms and conditions of GHEPIVGP’s limited partnership agreement. Each member of GHI that has the right to participate in this Investment has the right to receive dividends from, or proceeds from the sale of, investments by GHI, including the Common Stock, in accordance with their membership interests in GHI and subject to the terms and conditions of GHI’s limited liability company agreement.

(e) Not applicable.

Item 6.

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

The information set forth or incorporated in Items 3 and 4 hereof is incorporated herein by reference.

On March 23, 2010, the Funds acquired beneficial ownership of an aggregate of 5,419,697 shares of Common Stock for an aggregate purchase price of $60,971,591.25 pursuant to three separate, privately negotiated agreements, as follows:

•

The Stock Purchase Agreement, dated March 23, 2010, by and among the Funds and Wayne Gorsek (“Gorsek”) pursuant to which the Funds acquired from Gorsek an aggregate of 4,787,788 shares of Common Stock for a purchase price of $11.25 per share, or $53,862,615 in the aggregate,

•

The Stock Purchase Agreement, dated March 23, 2010, by and among the Funds and Swan Lake Investments, LLC (“Swan Lake”) pursuant to which the Funds acquired from Swan Lake an aggregate of 302,819 shares of Common Stock for a purchase price of $11.25 per share, or $3,406,713.75 in the aggregate, and

•

The Stock Purchase Agreement, dated March 23, 2010, by and among the Funds and Salvatore and Anna Caro (the “Caros”) pursuant to which the Funds acquired from the Caros an aggregate of 329,090 shares of Common Stock for a purchase price of $11.25 share, or $3,702,262.50 in the aggregate.

The foregoing are herein referred to as the “Stock Purchase Agreements” and Gorsek, Swan Lake and the Caros as the “Selling Shareholders.” Pursuant to the Stock Purchase Agreements, each of the Selling Shareholders made certain customary representations regarding their ownership of the shares of Common Stock purchased by the Funds and other matters relating to the private resale transaction. The Selling Shareholders also agreed to certain limitations with respect to future purchases of Common Stock in excess of 1.0% of the outstanding Common Stock and related standstill restrictions with respect to proxy solicitation and efforts to form a “group” for purposes of Section 13(d) of the Exchange Act, and agreed to the release of certain claims.

In connection with the Stock Purchase Agreement, the Funds entered into an Escrow Agreement with each Selling Shareholder and BNY Mellon, National Association, which are attached hereto as Exhibits 5 through 7.

The foregoing summaries of the Stock Purchase Agreements do not purport to be complete and each is qualified in its entirety incorporated by reference to the complete text of such agreement attached hereto as Exhibits 1 through 3, respectively, which are incorporated herein by reference.

Item 7.

Material to be Filed as Exhibits



Exhibit 1		Stock Purchase Agreement, dated as of March 23, 2010, by and among the Funds and Wayne Gorsek.

Exhibit 2		Stock Purchase Agreement, dated as of March 23, 2010, by and among the Funds and Swan Lake Investments, LLC.

Exhibit 3		Stock Purchase Agreement, dated as of March 23, 2010, by and among the Funds and Salvatore and Anna Caro.

Exhibit 4		Joint Filing Agreement, dated as of March 23, 2010, by and among the GHI, GHEP III, GHEPIIIGP, GHPIII, GHEP IV, GHEPIVGP, GHPIV, Gaffney, Vettel and Hayes.

Exhibit 5		Escrow Agreement, dated as of March 23, 2010, by and among the Funds, BNY Mellon, National Association and Wayne Gorsek.

Exhibit 6		Escrow Agreement, dated as of March 23, 2010, by and among the Funds, BNY Mellon, National Association and Swan Lake Investments, LLC.

Exhibit 7		Escrow Agreement, dated as of March 23, 2010, by and among the Funds, BNY Mellon, National Association and Salvatore and Anna Caro.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule 13D is true, complete, and correct.

Date: March 23, 2010


GREAT HILL INVESTORS, LLC

By:		/s/ CHRISTOPHER S. GAFFNEY
Name:		Christopher S. Gaffney
Title:		A Manager

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/ CHRISTOPHER S. GAFFNEY
Name:		Christopher S. Gaffney
Title:		A Manager

GREAT HILL PARTNERS GP III, L.P.

By: GHP III, LLC, its General Partner



By:		/s/ CHRISTOPHER S. GAFFNEY
Name:		Christopher S. Gaffney
Title:		A Manager

GHP III, LLC



By:		/s/ CHRISTOPHER S. GAFFNEY
Name:		Christopher S. Gaffney
Title:		A Manager

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/ CHRISTOPHER S. GAFFNEY
Name:		Christopher S. Gaffney
Title:		A Manager

GREAT HILL PARTNERS GP IV, L.P.

By: GHP IV, LLC, its General Partner



By:		/s/ CHRISTOPHER S. GAFFNEY
Name:		Christopher S. Gaffney
Title:		A Manager

GHP IV, LLC



By:		/s/ CHRISTOPHER S. GAFFNEY
Name:		Christopher S. Gaffney
Title:		A Manager

/s/ CHRISTOPHER S. GAFFNEY
Name:		Christopher S. Gaffney

/s/ JOHN G. HAYES
Name:		John G. Hayes

/s/ MATTHEW T. VETTEL
Name:		Matthew T. Vettel

EXHIBIT INDEX



Exhibit 1		Stock Purchase Agreement, dated as of March 23, 2010, by and among the Funds and Wayne Gorsek.

Exhibit 2		Stock Purchase Agreement, dated as of March 23, 2010, by and among the Funds and Swan Lake Investments, LLC.

Exhibit 3		Stock Purchase Agreement, dated as of March 23, 2010, by and among the Funds and Salvatore and Anna Caro.

Exhibit 4		Joint Filing Agreement, dated as of March 23, 2010, by and among the GHI, GHEP III, GHEPIIIGP, GHPIII, GHEP IV, GHEPIVGP, GHPIV, Gaffney, Vettel and Hayes.

Exhibit 5		Escrow Agreement, dated as of March 23, 2010, by and among the Funds, BNY Mellon, National Association and Wayne Gorsek.

Exhibit 6		Escrow Agreement, dated as of March 23, 2010, by and among the Funds, BNY Mellon, National Association and Swan Lake Investments, LLC.

Exhibit 7		Escrow Agreement, dated as of March 23, 2010, by and among the Funds, BNY Mellon, National Association and Salvatore and Anna Caro.

EX-99.1 2 dex991.htm STOCK PURCHASE AGREEMENT (WAYNE GORSEK) Stock Purchase Agreement (Wayne Gorsek)

Exhibit 1

STOCK PURCHASE AGREEMENT

This Agreement (this “Agreement”), dated as of March 23, 2010, is by and among Great Hill Investors, LLC, Great Hill Equity Partners III, L.P. and Great Hill Equity Partners IV, L.P. (each a “Buyer” and collectively, the “Buyers”) and Wayne F. Gorsek (“Seller”).

WHEREAS, the Seller owns 4,787,788 shares (the “Shares”) of common stock, par value $0.00001 per share (the “Common Stock”), of Vitacost.com, Inc., a Delaware corporation (“Vitacost”), and the Buyers desire to purchase the Shares.

WHEREAS, the Buyers and Seller have entered into an Escrow Agreement with BNY Mellon, National Association to facilitate the transactions contemplated under this Agreement (the “Escrow Agreement”).

WHEREAS, Vitacost announced on February 18, 2010 its financial results for the fourth quarter and year ended December 31, 2009 (“Year End Release”) and is required to file an annual report on Form 10-K with the Securities and Exchange Commission by no later than March 31, 2010.

NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants, agreements and terms and conditions contained herein and intending to be legally bound, the parties hereto agree as follows:

Section 1. Purchase and Sale of Common Stock

(a) Purchase. On the terms and subject to the conditions set forth in this Agreement, concurrently with the execution of this Agreement, the Buyers shall purchase the Shares from the Seller, and the Seller shall sell the Shares to the Buyers, for $11.25 per Share, constituting an aggregate purchase price equal to $53,862,615 (collectively, the “Purchase Price”).

(b) Closing. Concurrently with the execution of this Agreement, the Buyers shall pay and deliver to the Seller the Purchase Price by wire transfer of immediately available funds in accordance with the Escrow Agreement, and the Seller shall transfer the Shares to a book entry account designated by the Buyers, with a portion of the Shares (as determined at the sole discretion of the Buyers) being transferred to Great Hill Equity Partners III, L.P. and the remaining balance of the Shares being transferred to Great Hill Equity Partners IV, L.P. and Great Hill Investors, LLC.

Section 2. Representations, Warranties and Agreements

(a) Each of the Buyers, as one party, and the Seller, as the other party, hereby makes the following representations and warranties to each other:

(i) It has the full power and authority to enter into this Agreement and to consummate the transaction contemplated hereby (and, in the case of each of the Buyers, it is a duly organized limited partnership, validly existing and in good standing under the laws of its jurisdiction of organization).

(ii) This Agreement is a valid and binding agreement, enforceable against such party in accordance with its terms, subject to bankruptcy and similar laws and to equitable principles.

(b) Seller hereby represents and warrants to the Buyers that:

(i) Seller has good and valid title to the Shares owned by him, free and clear of all liens, encumbrances or claims.

(ii) Upon delivery of the Shares to be sold by the Seller, payment therefor pursuant hereto and assuming the Buyers have no notice of any “adverse claim” (within the meaning of Section 8-102 of the Uniform Commercial Code (the “UCC”)) (x) each Buyer shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (y) under Section 8-501 of the UCC, each Buyer will acquire good and valid title and a valid security entitlement in respect of such Shares free of any “adverse claims” (within the meaning of Section 8-102 of the UCC).

(iii) The execution, delivery and performance of this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby do not and will not (x) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, or (y) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property or assets of Seller.

(iv) Except for filings by the Seller under Section 13 and Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Seller or the property or assets of the Seller is required for the execution, delivery and performance of this Agreement and the consummation by the Seller of the transactions contemplated hereby.

(v) Seller represents that it has not conducted any general solicitation for offerees with respect to the Shares.

(i) Each Buyer understands that the Shares are being purchased under an exemption from the Securities Act of 1933, as amended (the “Securities Act”), and that the Shares constitute “restricted securities,” as such term is defined in Rule 144 under the Securities Act, have not been registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred without registration under the Securities Act and applicable state securities laws or an exemption therefrom.

(ii) Each Buyer is an “Accredited Investor” as such term is defined in Rule 501 of Regulation D of the Securities Act and is acquiring the Shares for its own account for investment only and not with a view towards, or for resale in connection with, the public sale or distribution thereof. Neither Buyer has any agreement or understanding, directly or indirectly, with any person to distribute any of the Shares.

(iii) The execution, delivery and performance of this Agreement by each Buyer and the consummation by each Buyer of the transactions contemplated hereby do not and will not (x) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Buyer is a party or by which such Buyer is bound or to which any of the property or assets of such Buyer is subject, or (y) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Buyer or the property or assets of such Buyer.

(d) All the representations, warranties and agreements of each party hereto shall survive the Closing Date.

Section 3. General Release and Standstill Covenant

(a) General Release. Seller, in his capacity as a former employee and stockholder of Vitacost and as the Seller under this Agreement, hereby releases, acquits, satisfies and forever discharges Buyers, Vitacost, and all of Buyers’ and Vitacost’s current and former officers, directors, employees, agents, representatives, predecessors, successors, investors, partners, affiliates, vendors, customers and insurers (and each of their respective heirs, successors and descendants) from any and all claims, demands, liabilities, promises, contracts, suits, debts, covenants, controversies, agreements and causes of action of any kind whatsoever, whether now known or unknown, whether currently existing or that will arise in the future, arising out of or relating to actions or failures to act from the beginning of time to the effective date of this Agreement. Notwithstanding the foregoing, the Seller retains the right to purse all available remedies against current or former directors or employees of Vitacost for any claims of defamation of character, disparagement or similar claims. As of the date hereof, the Seller is not currently pursuing any such legal claims and is not currently aware of any such claims which may be asserted by him at this time.

(b) Standstill. The Seller hereby agrees that he shall not:

(i) acquire, offer or propose to acquire, or agree to acquire (except by way of stock dividends, stock splits, reverse stock splits or other distributions or offerings made available to holders of any voting securities generally), whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (as defined under Section 13(d) of the Exchange Act) or otherwise, any voting securities if, as a result of such acquisition, the Seller would beneficially own in the aggregate more than 1.0% of the then outstanding voting securities;

(ii) make, participate in or encourage any “solicitation” (as such term is used in the proxy rules of the SEC) of proxies or consents with respect to the election or removal of directors or any other matter or proposal or seek to advise, encourage or influence any person with respect to the voting of any voting securities;

(iii) initiate, propose or otherwise “solicit” (as such term is used in the proxy rules of the SEC) shareholders of Vitacost for the approval of any shareholder proposal or cause or encourage any person to initiate any such shareholder proposal; or seek to call, or to request the call of, or call a special meeting of the shareholders of Vitacost; or make a request for a list of Vitacost’s shareholders or other Vitacost records;

(iv) seek election or appointment to, or representation on, or nominate or propose the nomination of any candidate to the board of directors; or seek the removal of any member of Vitacost’s board of directors;

(v) form or join in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act, with respect to any voting securities, or deposit any voting securities into a voting trust or subject any voting securities to any voting agreement;

(vi) act alone or in concert with others to control or seek to control, or influence or seek to influence, the management, the board of directors or the policies of Vitacost;

(vii) with respect to Vitacost or the voting securities, (i) otherwise communicate with Vitacost’s shareholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act or (ii) participate in, or take any action pursuant to, any “shareholder access” proposal that may be adopted by the SEC, whether in accordance with proposed Rule 14a-11 or otherwise;

(viii) seek, propose, or make any statement with respect to any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving Vitacost or any of its affiliates or associates (as defined under Rule 12b-2 of the Exchange Act);

(ix) have any discussions or communications, or enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing; or

(x) otherwise take, or solicit, cause or encourage others to take, any action inconsistent with any of the foregoing.

The Buyers acknowledge that the Seller may be interested in future employment in the nutrition industry involving direct-to-consumer ecommerce. For the sake of clarity, the Buyers acknowledge that the foregoing restrictions in this Section 3(b) shall not prohibit the Seller from such employment.

Section 4. Miscellaneous

(a) Further Assurances. Each party hereto shall properly execute and deliver such further agreements and instruments, and take such further actions, as the other party may reasonably request in order to carry out the purposes and intent of this Agreement.

(b) Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given (i) when delivery is made or refused if delivered personally, (ii) upon successful written confirmation of facsimile transmission (with subsequent letter confirmation by any other method permitted under this Section), (iii) the next business day, if by overnight courier, and/or (iv) five days after being mailed by certified or registered mail, postage prepaid, return receipt requested, in each case, to the parties, their successors in interest or their assignees at the following addresses, or at such other addresses as the parties may designate by written notice in the manner aforesaid:


If to the Seller:		Wayne F. Gorsek
		360 E. Desert Inn #1203
		Las Vegas, NV 89109
		Tel:

If to Buyers:		Great Hill Partners, LLC
		One Liberty Square
		Boston, MA 02109
		Attention: Michael A. Kumin
		Tel: (617) 790-9435
		Fax: (617) 790-9401

With a copy to:		Edwards Angell Palmer & Dodge LLP
		111 Huntington Avenue
		Boston, MA 02199
		Attention: Matthew J. Gardella, Esq.
		Tel: (617) 239-0789
		Fax: (866) 955-8776

(c) Dispute Resolution. The parties shall submit any dispute arising under or in connection with this Agreement to binding arbitration in Wilmington, Delaware. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at the time of arbitration. The parties shall appoint an arbitrator by mutual agreement, provided, however, that if the parties cannot mutually agree on an arbitrator, then each party shall select one arbitrator and the two arbitrators so selected shall appoint a third arbitrator. The decision rendered by the arbitrator, or a majority decision of the arbitrators, as the case may be, shall be final, binding and nonappealable, and judgment upon such decision may be entered by any court having jurisdiction thereof. The costs, fees (including attorneys fees) and expenses of arbitration shall be borne by the party that does not prevail in substantial part as determined by the arbitrator(s). The parties covenant and agree that they will participate in the arbitration in good faith. This Section 4(c) applies equally to requests for

temporary, preliminary or permanent injunctive relief, except that in the case of temporary or preliminary injunctive relief any party may proceed in court without prior arbitration for the limited purpose of avoiding immediate and irreparable harm. In no event shall either party seek punitive damages against the other party to this Agreement.

(d) Assignability and Parties in Interest. This Agreement shall not be assignable by any of the parties hereto without the consent of the other parties hereto, except that the Buyers shall be able to assign their rights and obligations hereunder to any affiliated entity subject to remaining liable hereunder for such affiliated entities’ obligations under this Agreement.

(e) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal substantive law, and not the law pertaining to conflicts of law, of the State of Delaware.

(f) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Any delivery of an executed counterpart of this Agreement (or counterpart signature page) by facsimile or electronic mail in PDF format shall be as effective as delivery of a manually executed counterpart (or counterpart signature page) of this Agreement.

(g) Complete Agreement. This Agreement is an integrated agreement containing the entire agreement, and all representations, warranties, covenants and understandings, between the parties hereto with respect to the subject matter hereof and shall supersede all previous and all contemporaneous oral or written negotiations, commitments or understandings. Except as specifically set forth in this Agreement, neither the Seller nor the Buyers makes any representation, warranty, covenant or undertaking with respect to the subject matter hereof.

(h) Modifications, Amendments and Waiver. This Agreement may be modified, amended or otherwise supplemented or terminated only by a writing signed by each of the parties to this Agreement. No waiver of any right or power hereunder shall be deemed effective unless and until a writing waiving such right or power is executed by the party waiving such right or power.

(i) Third Party Beneficiaries. There are no third party beneficiaries under this Agreement.

(j) Expenses. Each party hereto shall bear its own costs and expenses, including, without limitation attorneys’ fees, incurred in connection with this Agreement and the transactions contemplated hereby.

(k) Confidentiality. The parties agree to keep the existence and subject matter of this Agreement confidential and not disclose it, unless required by law (in which case the disclosing party shall give the other party advance notice and opportunity to review the disclosure, and consider in good faith any reasonable comments thereto). Specifically, the Seller agrees to use reasonable efforts to provide the Buyers with at least one business day to review any proposed disclosure relating to this Agreement and/or any sale of the Shares contemplated hereby in any Seller filing under Section 13 and Section 16 of the Exchange Act (e.g., amendment of a Schedule 13G or Form 4).

[Remainder of Page Left Intentionally Blank]

IN WITNESS WHEREOF, each of the Buyers and the Seller has caused this Agreement to be signed by their respective duly authorized officers as of the date first written above.


BUYERS:

Great Hill Investors, LLC

By:		/s/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager



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/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager



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/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager

[First Signature Page to the Stock Purchase Agreement]

SELLER:

/s/ Wayne F. Gorsek

Name: Wayne F. Gorsek

[Second and Final Signature Page to the Stock Purchase Agreement]

SCHEDULE A

WIRE TRANSFER INSTRUCTIONS

EX-99.2 3 dex992.htm STOCK PURCHASE AGREEMENT (SWAN LAKE INVESTMENTS, LLC) Stock Purchase Agreement (Swan Lake Investments, LLC)

Exhibit 2

STOCK PURCHASE AGREEMENT

WHEREAS, the Seller owns 302,819 shares (the “Shares”) of common stock, par value $0.00001 per share (the “Common Stock”), of Vitacost.com, Inc., a Delaware corporation (“Vitacost”), and the Buyers desire to purchase the Shares.

Section 1. Purchase and Sale of Common Stock

(a) Purchase. On the terms and subject to the conditions set forth in this Agreement, concurrently with the execution of this Agreement, the Buyers shall purchase the Shares from the Seller, and the Seller shall sell the Shares to the Buyers, for $11.25 per Share, constituting an aggregate purchase price equal to $3,406,713.75 (collectively, the “Purchase Price”).

Section 2. Representations, Warranties and Agreements

(a) Each of the Buyers, as one party, and the Seller, as the other party, hereby makes the following representations and warranties to each other:

(ii) This Agreement is a valid and binding agreement, enforceable against such party in accordance with its terms, subject to bankruptcy and similar laws and to equitable principles.

(b) Seller hereby represents and warrants to the Buyers that:

(i) Seller has good and valid title to the Shares owned by him, free and clear of all liens, encumbrances or claims.

(v) Seller represents that it has not conducted any general solicitation for offerees with respect to the Shares.

(d) All the representations, warranties and agreements of each party hereto shall survive the Closing Date.

Section 3. General Release and Standstill Covenant

(a) General Release. Seller hereby releases, acquits, satisfies and forever discharges Buyers, Vitacost, and all of Buyers’ and Vitacost’s current and former officers, directors, employees, agents, representatives, predecessors, successors, investors, partners, affiliates, vendors, customers and insurers (and each of their respective heirs, successors and descendants) from any and all claims, demands, liabilities, promises, contracts, suits, debts, covenants, controversies, agreements and causes of action of any kind whatsoever, whether now known or unknown, whether currently existing or that will arise in the future, arising out of or relating to actions or failures to act from the beginning of time to the effective date of this Agreement.

(b) Standstill. The Seller hereby agrees that he shall not:

(vi) act alone or in concert with others to control or seek to control, or influence or seek to influence, the management, the board of directors or the policies of Vitacost;

(x) otherwise take, or solicit, cause or encourage others to take, any action inconsistent with any of the foregoing.

Section 4. Miscellaneous


If to the Seller:		Swan Lake Investments, LLC
		2702 Swan Lake Drive
		High Point, NC 27262
		Attention: John J. Walker
		Tel:



If to Buyers:		Great Hill Partners, LLC
		One Liberty Square
		Boston, MA 02109
		Attention: Michael A. Kumin
		Tel: (617) 790-9435
		Fax: (617) 790-9401

With a copy to:		Edwards Angell Palmer & Dodge LLP
		111 Huntington Avenue
		Boston, MA 02199
		Attention: Matthew J. Gardella, Esq.
		Tel: (617) 239-0789
		Fax: (866) 955-8776

(c) Assignability and Parties in Interest. This Agreement shall not be assignable by any of the parties hereto without the consent of the other parties hereto, except that the Buyers shall be able to assign their rights and obligations hereunder to any affiliated entity subject to remaining liable hereunder for such affiliated entities’ obligations under this Agreement.

(d) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal substantive law, and not the law pertaining to conflicts of law, of the State of New York.

(e) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Any delivery of an executed counterpart of this Agreement (or counterpart signature page) by facsimile or electronic mail in PDF format shall be as effective as delivery of a manually executed counterpart (or counterpart signature page) of this Agreement.

(f) Complete Agreement. This Agreement is an integrated agreement containing the entire agreement, and all representations, warranties, covenants and understandings, between the parties hereto with respect to the subject matter hereof and shall supersede all previous and all contemporaneous oral or written negotiations, commitments or understandings. Except as specifically set forth in this Agreement, neither the Seller nor the Buyers makes any representation, warranty, covenant or undertaking with respect to the subject matter hereof.

(g) Modifications, Amendments and Waiver. This Agreement may be modified, amended or otherwise supplemented or terminated only by a writing signed by each of the parties to this Agreement. No waiver of any right or power hereunder shall be deemed effective unless and until a writing waiving such right or power is executed by the party waiving such right or power.

(h) Third Party Beneficiaries. There are no third party beneficiaries under this Agreement.

(i) Expenses. Each party hereto shall bear its own costs and expenses, including, without limitation attorneys’ fees, incurred in connection with this Agreement and the transactions contemplated hereby.

(j) Confidentiality. The parties agree to keep the existence and subject matter of this Agreement confidential and not disclose it, unless required by law (in which case the disclosing party shall give the other party advance notice and opportunity to review the disclosure, and consider in good faith any reasonable comments thereto). Specifically, the Seller agrees to use reasonable efforts to provide the Buyers with at least one business day to review any proposed disclosure relating to this Agreement and/or any sale of the Shares contemplated hereby in any Seller filing under Section 13 and Section 16 of the Exchange Act (e.g., amendment of a Schedule 13G or Form 4).

[Remainder of Page Left Intentionally Blank]

IN WITNESS WHEREOF, each of the Buyers and the Seller has caused this Agreement to be signed by their respective duly authorized officers as of the date first written above.


BUYERS: Great Hill Investors, LLC

By:		/s/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager

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/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager

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/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager

[First Signature Page to the Stock Purchase Agreement]


SELLER: Swan Lake Investments, LLC

By:		/s/ John J. Walker
Name:		John J. Walker
Title:		Manager

[Second and Final Signature Page to the Stock Purchase Agreement]

SCHEDULE A

WIRE TRANSFER INSTRUCTIONS

EX-99.3 4 dex993.htm STOCK PURCHASE AGREEMENT (SALVATORE AND ANNA CARO) Stock Purchase Agreement (Salvatore and Anna Caro)

Exhibit 3

STOCK PURCHASE AGREEMENT

WHEREAS, the Sellers jointly own 329,090 shares (the “Shares”) of common stock, par value $0.00001 per share (the “Common Stock”), of Vitacost.com, Inc., a Delaware corporation (“Vitacost”), and the Buyers desire to purchase the Shares.

Section 1. Purchase and Sale of Common Stock

(a) Purchase. On the terms and subject to the conditions set forth in this Agreement, concurrently with the execution of this Agreement, the Buyers shall purchase the Shares from the Sellers, and the Sellers shall sell the Shares to the Buyers, for $11.25 per Share, constituting an aggregate purchase price equal to $3,702,262.50 (collectively, the “Purchase Price”).

(b) Closing. Concurrently with the execution of this Agreement, the Buyers shall pay and deliver to Seller the Purchase Price by wire transfer of immediately available funds in accordance with the Escrow Agreement, and the Sellers shall transfer the Shares to a book entry account designated by the Buyers, with a portion of the Shares (as determined at the sole discretion of the Buyers) being transferred to Great Hill Equity Partners III, L.P. and the remaining balance of the Shares being transferred to Great Hill Equity Partners IV, L.P. and Great Hill Investors, LLC.

Section 2. Representations, Warranties and Agreements

(a) Each of the Buyers, as one party, and each of the Sellers, as the other party, hereby make the following representations and warranties to each other:

(ii) This Agreement is a valid and binding agreement, enforceable against such party in accordance with its terms, subject to bankruptcy and similar laws and to equitable principles.

(b) Each Seller hereby represents and warrants to the Buyers that:

(i) Such Seller has good and valid title to the Shares owned by it as set forth on Schedule A, free and clear of all liens, encumbrances or claims.

(ii) Upon delivery of the Shares to be sold by the Sellers, payment therefor pursuant hereto and assuming the Buyers have no notice of any “adverse claim” (within the meaning of Section 8-102 of the Uniform Commercial Code (the “UCC”)) (x) each Buyer shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (y) under Section 8-501 of the UCC, each Buyer will acquire good and valid title and a valid security entitlement in respect of such Shares free of any “adverse claims” (within the meaning of Section 8-102 of the UCC).

(iii) The execution, delivery and performance of this Agreement by each Seller and the consummation by each Seller of the transactions contemplated hereby do not and will not (x) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Seller is a party or by which such Seller is bound or to which any of the property or assets of such Seller is subject, or (y) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or the property or assets of such Seller.

(iv) Except for filings by the Sellers under Section 13 and Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Sellers or the property or assets of the Sellers is required for the execution, delivery and performance of this Agreement and the consummation by the Sellers of the transactions contemplated hereby.

(v) Each Seller represents that it has not conducted any general solicitation for offerees with respect to the Shares.

(d) All the representations, warranties and agreements of each party hereto shall survive the Closing Date.

Section 3. General Release and Standstill Covenant

(a) General Release. Sellers hereby release, acquit, satisfy and forever discharge Buyers, Vitacost, and all of Buyers’ and Vitacost’s current and former officers, directors, employees, agents, representatives, predecessors, successors, investors, partners, affiliates, vendors, customers and insurers (and each of their respective heirs, successors and descendants) from any and all claims, demands, liabilities, promises, contracts, suits, debts, covenants, controversies, agreements and causes of action of any kind whatsoever, whether now known or unknown, whether currently existing or that will arise in the future, arising out of or relating to actions or failures to act from the beginning of time to the effective date of this Agreement.

(b) Standstill. The Sellers hereby agree that they shall not:

(i) acquire, offer or propose to acquire, or agree to acquire (except by way of stock dividends, stock splits, reverse stock splits or other distributions or offerings made available to holders of any voting securities generally), whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (as defined under Section 13(d) of the Exchange Act) or otherwise, any voting securities if, as a result of such acquisition, the Sellers would beneficially own in the aggregate more than 1.0% of the then outstanding voting securities;

(vi) act alone or in concert with others to control or seek to control, or influence or seek to influence, the management, the board of directors or the policies of Vitacost;

(x) otherwise take, or solicit, cause or encourage others to take, any action inconsistent with any of the foregoing.

Section 4. Miscellaneous


If to the Sellers:		Salvatore and Anna Caro
		9 Navajo Drive
		Springfield, IL 62711
		Tel:
		Fax:

If to Buyers:		Great Hill Partners, LLC
		One Liberty Square
		Boston, MA 02109
		Attention: Michael A. Kumin
		Tel: (617) 790-9435
		Fax: (617) 790-9401

With a copy to:		Edwards Angell Palmer & Dodge LLP
		111 Huntington Avenue
		Boston, MA 02199
		Attention: Matthew J. Gardella, Esq.
		Tel: (617) 239-0789
		Fax: (866) 955-8776

(f) Complete Agreement. This Agreement is an integrated agreement containing the entire agreement, and all representations, warranties, covenants and understandings, between the parties hereto with respect to the subject matter hereof and shall supersede all previous and all contemporaneous oral or written negotiations, commitments or understandings. Except as specifically set forth in this Agreement, neither the Sellers nor the Buyers makes any representation, warranty, covenant or undertaking with respect to the subject matter hereof.

(h) Third Party Beneficiaries. There are no third party beneficiaries under this Agreement.

(j) Confidentiality. The parties agree to keep the existence and subject matter of this Agreement confidential and not disclose it, unless required by law (in which case the disclosing party shall give the other party advance notice and opportunity to review the disclosure, and consider in good faith any reasonable comments thereto). Specifically, the Sellers agree to use reasonable efforts to provide the Buyers with at least one business day to review any proposed disclosure relating to this Agreement and/or any sale of the Shares contemplated hereby in any Seller filing under Section 13 and Section 16 of the Exchange Act (e.g., amendment of a Schedule 13G or Form 4).

[Remainder of Page Left Intentionally Blank]

IN WITNESS WHEREOF, each of the Buyers and the Sellers has caused this Agreement to be signed by their respective duly authorized officers as of the date first written above.


BUYERS: Great Hill Investors, LLC

By:		/s/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager

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/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager

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/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager

[First Signature Page to the Stock Purchase Agreement]

SELLERS:

/s/ Salvatore Caro

Name: Salvatore Caro

/s/ Anna Caro

Name: Anna Caro

[Second and Final Signature Page to the Stock Purchase Agreement]

SCHEDULE A

WIRE TRANSFER INSTRUCTIONS

EX-99.4 5 dex994.htm JOINT FILING AGREEMENT Joint Filing Agreement

Exhibit 4

Joint Filing Agreement

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, as of March 23, 2010 the undersigned each hereby agrees to the joint filing on behalf of each of them of a Statement on Schedule 13D, including amendments thereto (as amended, the “Schedule 13D”) with respect to common stock, par value $0.00001 per share, of Vitacost.com, Inc., a Delaware corporation, and further agrees that this Joint Filing Agreement be included as an exhibit to the Schedule 13D provided that, as contemplated by Section 13d-1(k)(1)(ii), no person shall be responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate. This Joint Filing Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.

[signature pages follow]

IN WITNESS WHEREOF, the undersigned hereby execute this Joint Filing Agreement as of the date first written above.


GREAT HILL INVESTORS, LLC

By:		/s/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager



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/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager



GREAT HILL PARTNERS GP III, L.P.

By: GHP III, LLC, its General Partner

By:		/s/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager



GHP III, LLC

By:		/s/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager



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/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager


GREAT HILL PARTNERS GP IV, L.P.

By: GHP IV, LLC, its General Partner

By:		/s/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager



GHP IV, LLC

By:		/s/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager



/s/ Christopher S. Gaffney
Name:		Christopher S. Gaffney



/s/ John G. Hayes
Name:		John G. Hayes



/s/ Matthew T. Vettel
Name:		Matthew T. Vettel

EX-99.5 6 dex995.htm ESCROW AGREEMENT (WAYNE GORSEK) Escrow Agreement (Wayne Gorsek)

Exhibit 5

BNY MELLON, NATIONAL ASSOCIATION

ESCROW AGREEMENT

This Escrow Agreement, dated as of March 23, 2010, is by and among Great Hill Investors, LLC, a Massachusetts limited liability company, having its principal place of business at One Liberty Square, Boston, MA 02109, Great Hill Equity Partners III, L.P., a Delaware limited liability company, having its principal place of business at One Liberty Square, Boston, MA 02109, Great Hill Equity Partners IV, L.P., having its principal place of business at One Liberty Square, Boston, MA 02109 (collectively, “Buyer”), Wayne Gorsek, an individual whose residential address is at 360 E. Desert INN #1203, Las Vegas, NV 704-3240 (“Seller”) (collectively, the Buyer and the Seller are herein referred to as the “Escrow Parties”), and BNY Mellon, National Association, a national banking association with its principal place of business at BNY Mellon Center, 201 Washington, Street, Boston, MA 02108 (the “Escrow Agent”).

WHEREAS, pursuant to the Stock Purchase Agreement of even date herewith (the “Stock Purchase Agreement”), Buyer has purchased, and Seller has sold, an aggregate of 4,787,788 shares of Common Stock (the “Shares”) of Vitacost.com, Inc. (the “Company”) for a purchase price of $11.25 per share, or $53,862,615 in the aggregate (the “Sale Proceeds”), exchanging all necessary instruments of transfer for the Shares against payment therefor as of the date hereof (the “Sale”), and

WHEREAS, until the Company’s Transfer Agent, BNY Mellon Shareowner Services, effects the book entry transfer of the Shares to reflect the Sale on its records, the parties have agreed to establish an escrow account for the Sale Proceeds as set forth in this Agreement.

NOW, THEREFORE, in consideration of the premises and agreements of the parties contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:

1. Appointment of Agent. The Escrow Parties appoint the Escrow Agent as their agent to hold in escrow, and to administer the disposition of, the Escrow Fund (as defined below) in accordance with the terms of this Agreement, and the Escrow Agent accepts such appointment.

2. Establishment of Escrow. Upon the execution of this Agreement, Buyer shall (a) cause $53,862,615 to be deposited with the Escrow Agent (the “Initial Deposit”), and Escrow Agent shall promptly upon request acknowledge to the Escrow Parties or any of them receipt of any funds so deposited; and (b) deliver one fully executed original of this Agreement to the Escrow Agent in accordance with the Notice section below, with a copy to the Escrow Agent’s attorney. The Initial Deposit and all additional amounts now or hereafter deposited with the Escrow Agent, together with all interest, dividends and other income earned, shall be referred to as the “Escrow Fund.” The Escrow Parties acknowledge that the sum held in escrow hereunder may be reduced from time to time during the term hereof pursuant to the terms of this Agreement. Accordingly, the term “Escrow Fund” shall refer both to the Initial Deposit and to such lesser or greater amount as may be held pursuant hereto at any point during the term hereof.

3. Customer Identification and TIN Certification.

(a) To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each individual or entity that opens an account. Therefore, the Escrow Agent must obtain the name, address, taxpayer or other government identification number, and other information, such as date of birth for individuals, for each individual and business entity that is a party to this Agreement. For individuals signing this Agreement on their own behalf or on behalf of another, the Escrow Agent requires a copy of a driver’s license, passport or other form of photo identification. For business and other entities that are parties to this Agreement, the Escrow Agent will require such documents as it deems necessary to confirm the legal existence of the entity.

(b) At the time of or prior to execution of this Agreement, any Escrow Party providing a tax identification number for tax reporting purposes shall provide to the Escrow Agent a completed IRS Form W-9, and every individual executing this Agreement on behalf of an Escrow Party shall provide to the Escrow Agent a copy of a driver’s license, passport or other form of photo identification acceptable to the Escrow Agent. The Escrow Parties agree to provide to the Escrow Agent such organizational documents and documents establishing the authority of any individual acting in a representative capacity as the Escrow Agent may require in order to comply with its established practices, procedures and policies. In the event that any Escrow Party fails to provide any such organizational documents or documents establishing authority, or any individual executing this Agreement on behalf of an Escrow Party fails to provide to the Escrow Agent an acceptable form of identification, within ten (10) days after the Escrow Agent requests the same, the Escrow Agent is authorized, not withstanding any other provision of this Agreement to the contrary, to place the Escrow Funds in a non-interest bearing deposit account until such documents are received by the Escrow Agent. The Escrow Agent is authorized and directed to assign the tax identification number certified by Seller to said account.

(c) The Escrow Agent is authorized and directed to report all interest and other income earned on the Escrow Fund in accordance with the Form W-9 information provided to the Escrow Agent by Seller. The Escrow Parties understand that, in the event one or more tax identification number is not certified to the Escrow Agent, the Internal Revenue Code, as amended from time to time, may require withholding of a portion of any interest or other income earned on the Initial Deposit

(d) The Escrow Agent shall have no duty to prepare or file any information reports (including without limitation IRS Forms 1099-B) other than such information reports of interest earned on the Escrow Fund as the Escrow Agent is required to prepare and file in the ordinary course of its business.

4. Deposit of the Escrow Fund. The Escrow Agent shall deposit the Escrow Fund in one or more deposit accounts at BNY Mellon, National Association in accordance with such written instructions and directions as may from time to time be provided to the Escrow Agent by Seller. In the event that the Escrow Agent does not receive written instructions, the Escrow Agent shall deposit the Escrow Fund in money market deposit accounts at BNY Mellon, National

Association. Deposits shall in all instances be subject to the Escrow Agent’s standard funds availability policy. The Escrow Agent shall not be responsible for any loss due to interest rate fluctuation or early withdrawal penalty. The Escrow Parties understand that deposits of the Escrow Fund are not necessarily insured by the United States Government or any agency or instrumentality thereof, or of any state or municipality, and that such deposits do not necessarily earn a fixed rate of return. In no instance shall the Escrow Agent have any obligation to provide investment advice of any kind. The Escrow Agent shall not be liable or responsible for any loss resulting from any deposits made pursuant to this Section 4, other than as a result of the gross negligence or willful misconduct of the Escrow Agent.

5. Release of the Escrow Fund.

The Escrow Agent shall disburse the Escrow Fund only in accordance with the written instruments set forth on Exhibit A delivered to the Escrow Agent that is executed by both the Buyer and the Seller and that instructs the Escrow Agent as to the disbursement of some or all of the Escrow Fund (the “Joint Wire Instructions”). The Escrow Parties agree that Escrow Fund shall be released to the Seller, in accordance the wire instructions included in Joint Written Instructions delivered to the Escrow Agent, promptly after Buyer has confirmed, in its sole discretion, that the Company’s Transfer Agent, BNY Mellon Shareowner Services, has effectuated the book entry transfer of the Shares to reflect the Sale on the Transfer Agent’s records. The Escrow Agent shall have no obligation to follow any directions set forth in any Joint Written Instructions unless and until the Escrow Agent is satisfied, in its sole discretion, that the persons executing said Joint Written Instructions are authorized to do so. The Buyer hereby expressly authorizes the Chief Financial Officer of Great Hill Partners, LLC (and any other authorized officer of such entity) the power and authority to execute the Joint Written Instructions on behalf of the Buyer, and the Escrow Agent hereby acknowledges such authorization.

Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the balance in the Escrow Fund, the Escrow Agent shall release the balance in the Escrow Fund and shall have no liability or responsibility to the Escrow Parties for any deficiency.

6. Methods of Payment. All payments required to be made by the Escrow Agent under this Agreement shall be made by wire transfer or by cashier’s check, as elected by the party receiving the funds. Any wire transfers shall be made subject to, and in accordance with, the Escrow Agent’s normal funds transfer procedures in effect from time to time. The Escrow Agent shall be entitled to rely upon all bank and account information provided to the Escrow Agent by any of the Escrow Parties. The Escrow Agent shall have no duty to verify or otherwise confirm any written wire transfer instructions but it may do so in its discretion on any occasion without incurring any liability to any of the Escrow Parties for failing to do so on any other occasion. The Escrow Agent shall process all wire transfers based on bank identification and account numbers rather than the names of the intended recipient of the funds, even if such numbers pertain to a recipient other than the recipient identified in the payment instructions. The Escrow Agent shall have no duty to detect any such inconsistencies and shall resolve any such inconsistencies by using the account number.

7. Responsibilities and Liability of Escrow Agent.

(a) Duties Limited. The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Agreement. The Escrow Agent’s duties shall be determined only with reference to this Agreement and applicable laws and it shall have no implied duties. The Escrow Agent shall not be bound by, deemed to have knowledge of, or have any obligation to make inquiry into or consider, any term or provision of any agreement between any of the Escrow Parties and/or any other third party or as to which the escrow relationship created by this Agreement relates, including without limitation any documents referenced in this Agreement.

(b) Limitations on Liability of Escrow Agent. Except in cases of the Escrow Agent’s bad faith, willful misconduct or gross negligence, the Escrow Agent shall be fully protected (i) in acting in reliance upon any certificate, statement, request, notice, advice, instruction, direction, other agreement or instrument or signature reasonably and in good faith believed by the Escrow Agent to be genuine, (ii) in assuming that any person purporting to give the Escrow Agent any of the foregoing in connection with either this Agreement or the Escrow Agent’s duties, has been duly authorized to do so, and (iii) in acting or failing to act in good faith on the advice of any counsel retained by the Escrow Agent. The Escrow Agent shall not be liable for any mistake of fact or law or any error of judgment, or for any act or omission, except as a result of its bad faith, willful misconduct or gross negligence. The Escrow Agent shall not be responsible for any loss incurred upon any action taken under circumstances not constituting bad faith, willful misconduct or gross negligence.

In connection with any payments that the Escrow Agent is instructed to make by wire transfer, the Escrow Agent shall not be liable for the acts or omissions of (a) any Escrow Party or other person providing such instructions, including without limitation errors as to the amount, bank information or bank account number; or (b) any other person or entity, including without limitation any Federal Reserve Bank, any transmission or communications facility, any funds transfer system, any receiver or receiving depository financial institution, and no such person or entity shall be deemed to be an agent of the Escrow Agent.

Without limiting the generality of the foregoing, it is agreed that in no event will the Escrow Agent be liable for any lost profits or other indirect, special, incidental or consequential damages which the parties may incur or experience by reason of having entered into or relied on this Agreement or arising out of or in connection with the Escrow Agent’s services, even if the Escrow Agent was advised or otherwise made aware of the possibility of such damages; nor shall the Escrow Agent be liable for acts of God, acts of war, breakdowns or malfunctions of machines or computers, interruptions or malfunctions of communications or power supplies, labor difficulties, actions of public authorities, or any other similar cause or catastrophe beyond the Escrow Agent’s reasonable control.

the provisions of this Agreement, or shall be advised that a dispute has arisen with respect to the Escrow Fund or any part thereof, the Escrow Agent shall be entitled, without liability to any person, to refrain from taking any action other than to keep safely the Escrow Fund until the Escrow Agent shall be directed otherwise in accordance with Joint Written Instructions or an order of a court with jurisdiction over the Escrow Agent. The Escrow Agent shall be under no duty to institute or defend any legal proceedings, although the Escrow Agent may, in its discretion and at the expense of the Escrow Parties as provided in subsections (c) or (d) immediately below, institute or defend such proceedings.

(c) Indemnification of Escrow Agent. The Escrow Parties jointly and severally agree to indemnify the Escrow Agent for, and to hold it harmless against, any and all claims, suits, actions, proceedings, investigations, judgments, deficiencies, damages, settlements, liabilities and expenses (including reasonable legal fees and expenses of attorneys chosen by the Escrow Agent) as and when incurred, arising out of or based upon any act, omission, alleged act or alleged omission by the Escrow Agent or any other cause, in any case in connection with the acceptance of, or performance or non-performance by the Escrow Agent of, any of the Escrow Agent’s duties under this Agreement, except as a result of the Escrow Agent’s bad faith, willful misconduct or gross negligence.

(d) Authority to Interplead. The Escrow Parties authorize the Escrow Agent, if the Escrow Agent is threatened with litigation or is sued, to interplead all interested parties in any court of competent jurisdiction and to deposit the Escrow Fund with the clerk of that court. In the event of any dispute, the Escrow Agent shall be entitled to petition a court of competent jurisdiction and shall perform any acts ordered by such court.

8. Termination. This Agreement and all the obligations of the Escrow Agent shall terminate upon the earliest to occur of the release of the entire Escrow Fund by the Escrow Agent in accordance with this Agreement or the deposit of the Escrow Fund by the Escrow Agent in accordance with Section 7(d) hereof. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 7 and 12 shall survive termination of this Agreement and any resignation or removal of the Escrow Agent hereunder.

9. Removal of Escrow Agent. The Escrow Parties acting together shall have the right to terminate the appointment of the Escrow Agent, specifying the date upon which such termination shall take effect. Thereafter, the Escrow Agent shall have no further obligation to the Escrow Parties except to hold the Escrow Fund as depository and not otherwise. The Escrow Parties agree that they will jointly appoint a banking corporation, trust company or attorney as successor escrow agent. Escrow Agent shall refrain from taking any action until it shall receive joint written instructions from the Escrow Parties designating the successor escrow agent. Escrow Agent shall deliver all of the Escrow Fund to such successor escrow agent in accordance with such instructions and upon receipt of the Escrow Fund, the successor escrow agent shall be bound by all of the provisions of this Agreement.

10. Resignation of Escrow Agent. The Escrow Agent may resign and be discharged from its duties and obligations hereunder at any time by giving no less than ten (10) days’ prior written notice of such resignation to the Escrow Parties, specifying the date when such resignation will take effect. Thereafter, the Escrow Agent shall have no further obligation to the Escrow Parties except to hold the Escrow Fund as depository and not otherwise. In the event of such resignation, the Escrow Parties agree that they will jointly appoint a banking corporation, trust company, or attorney as successor escrow agent within ten (10) days of notice of such resignation. Escrow Agent shall refrain from taking any action until it shall receive joint written instructions from the Escrow Parties designating the successor escrow agent. Escrow Agent shall deliver all of the Escrow Fund to such successor escrow agent in accordance with such instructions and upon receipt of the Escrow Fund, the successor escrow agent shall be bound by all of the provisions of this Agreement.

11. Accounting. On a monthly basis, the Escrow Agent shall render a written statement setting forth the balance of the Escrow Fund, all interest earned and all distributions made, which statements shall be delivered to the Escrow Parties at the addresses for Buyer and Seller set forth in Section 13 hereof.

12. Escrow Agent Fees, Costs, and Expenses. The Escrow Agent shall charge an administrative fee of $0.00, and shall be entitled to be reimbursed for its customary fees and charges for any wire transfers or other depository services rendered in connection with the Escrow Fund and any delivery charges or other out of pocket expenses incurred in connection the Escrow Fund. The Escrow Parties each acknowledge their joint and several obligation to pay any fees, expenses and other amounts owed to the Escrow Agent pursuant to this Agreement. The Escrow Parties agree that Escrow Agent shall be entitled to pay itself for any fees, expenses or other amounts owed to the Escrow Agent out of the amounts held in the Escrow Fund and grant to the Escrow Agent a first priority security interest in the Escrow Fund to secure all obligations owed by them to the Escrow Agent under this Agreement. The Escrow Parties further agree that the Escrow Agent shall be entitled to withhold any distribution otherwise required to be made from the Escrow Fund if any fees, expenses or other amounts owed to the Escrow Agent remain unpaid on the date such distribution would otherwise be made.

13. Notices, Contact Information. All notices under this Agreement shall be transmitted to the respective parties, shall be in writing and shall be considered to have been duly given or served when personally delivered to any individual party, or on the first (1st) business day after the date of deposit with an overnight courier for next day delivery, postage paid, or on the third (3rd) business day after deposit in the United States mail, certified or registered, return receipt requested, postage prepaid, or on the date of telecopy, fax or similar transmission during normal business hours, as evidenced by mechanical confirmation of such telecopy, fax or similar transmission, addressed in all cases to the party at his or its address set forth below, or to such other address as such party may designate, provided that notices will be deemed to have been given to the Escrow Agent on the actual date received:

If to Buyer:

Great Hill Partners, LLC

One Liberty Square

Boston, MA 02109

Attention: Laurie T. Gerber

Chief Financial Officer

Tel: (617) 790-9430

Fax: (617) 790-9401

Copy to (which shall not constitute notice to Buyer):

Edwards Angell Palmer & Dodge LLP

111 Huntington Avenue

Boston, MA 02199

Attention: Matthew J. Gardella, Esq.

Jill Hanson, Esq.

Tel: (617) 239-0789

Fax: (866) 955-8776

If to Seller:

Wayne F. Gorsek

360 E. Desert Inn #1203

Las Vegas, NV 89109

Tel:

Fax:

If to the Escrow Agent:

BNY Mellon National Association

BNY Mellon Center

201 Washington Street

Boston, MA 02108

Facsimile: 617-722-7641

Attention: Meredith Mitchell, Vice President

Kimberly Langford, Escrow Administrator

Copy (which shall not constitute notice to the Escrow Agent) to:

Bruce D. Berns, Esq.

Abendroth, Berns & Warner LLC

40 Grove Street, Suite 375

Wellesley, MA 02482

Facsimile: (781) 237-8891

Any notice, except notice by the Escrow Agent, may be given on behalf of any party by its counsel or other authorized representative. In all cases the Escrow Agent shall be entitled to rely on a copy or a fax transmission of any document with the same legal effect as if it were the original of such document.

To facilitate the performance by the Escrow Agent of its duties and obligations hereunder, including resolving any issues arising hereunder (but not the giving of notice as provided above), the Escrow Parties agree that the Escrow Agent may contact the following representatives of each the Escrow Parties identified below, or such other individuals as any of the Escrow Parties may identify by written notice to the Escrow Agent:

Buyer:

Laurie T. Gerber and John Dwyer, Great Hill Partners, LLC

(tel: 617-790-9430; email: lgerber@greathillpartners.com)

(tel: 617-790-9400; email: jdwyer@greathillpartners.com)

Matthew J. Gardella, Esq. and Jill Hanson, Esq.

Edwards Angell Palmer & Dodge LLP

(tel: 617-239-0789; email: mgardella@eapdlaw.com)

(tel: 617-239-0849; email: jhanson@eapdlaw.com)

Seller:

Wayne F. Gorsek

(tel:__________________; email: _____________________)

14. Modifications; Waiver. This Agreement may not be altered or modified without the express prior written consent of all of the parties to this Agreement. No course of conduct shall constitute a waiver of any terms or conditions of this Agreement, unless such waiver is specified in writing, and then only to the extent so specified. A waiver of any of the terms and conditions of this Agreement on one occasion shall not constitute a waiver of the other terms of this Agreement, or of such terms and conditions on any other occasion.

15. Further Assurances. If at any time the Escrow Agent shall determine or be advised that any further agreements, assurances or other documents are reasonably necessary or desirable to carry out the provisions of this Agreement and the transactions contemplated by this Agreement, the Escrow Parties shall execute and deliver any and all such agreements or other documents, and do all things reasonably necessary or appropriate to carry out fully the provisions of this Agreement.

16. Assignment. This Agreement shall inure to the benefit of and be binding upon the successors, heirs, personal representatives, and permitted assigns of the parties. This Agreement is freely assignable by the Escrow Parties; provided, however, that no assignment by such party, or it successors or assigns, shall be effective unless prior written notice of such assignment is given to the other parties, including, without limitation, the Escrow Agent; and provided, further, that any assignee satisfies the Escrow Agent’s requirements set forth in Section 3(b) above. This Agreement may not be assigned by the Escrow Agent, except that upon prior written notice to the Escrow Parties, the Escrow Agent may assign this Agreement to an affiliated or successor bank or other qualified bank entity.

17. Section Headings. The section headings contained in this Agreement are inserted for purposes of convenience of reference only and shall not affect the meaning or interpretation of this Agreement.

18. Governing Law. This Escrow Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to principles of conflicts of law.

19. Counterparts and Facsimile Execution. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. The exchange of copies of this Escrow Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Escrow Agreement as to the parties and may be used in lieu of the original Escrow Agreement for all purposes (and such signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes).

20. Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, EACH PARTY HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING IN WHOLE OR IN PART UNDER, RELATED TO, BASED ON OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.


BUYERS:

Great Hill Investors, LLC

By:		/s/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager


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/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager


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/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager

[First Signature Page to the Escrow Agreement]

SELLER:

/s/ Wayne F. Gorsek

Name: Wayne F. Gorsek

[Second Signature Page to the Escrow Agreement]


BNY MELLON, NATIONAL ASSOCIATION

BY:		/s/ Mary E. Gooding
NAME:		Mary E. Gooding
TITLE:		Senior Vice President

[Third and Final Signature Page to the Stock Purchase Agreement]

EXHIBIT A

JOINT WRITTEN INSTRUCTIONS

FOR RELEASE OF ESCROW FUNDS

Pursuant to Section 5 of the Escrow Agreement dated as of March 23, 2010, by and among Great Hill Investors, LLC, a Massachusetts limited liability company, having its principal place of business at One Liberty Square, Boston, MA 02109, Great Hill Equity Partners III, L.P., a Delaware limited liability company, having its principal place of business at One Liberty Square, Boston, MA 02109, Great Hill Equity Partners IV, L.P., having its principal place of business at One Liberty Square, Boston, MA 02109 (collectively, “Buyer”), Wayne Gorsek, an individual whose residential address is at 360 E. Desert INN #1203, Las Vegas, NV 704-3240 (“Seller”) (collectively, the Buyer and the Seller are herein referred to as the “Escrow Parties”), and BNY Mellon, National Association, a national banking association with its principal place of business at BNY Mellon Center, 201 Washington, Street, Boston, MA 02108 (the “Escrow Agent”), Buyer and Seller hereby instruct the Escrow Agent to release $[ ] from the Escrow Fund in accordance with the following instructions:

Wire Instructions:


Account Name:
Account Number:
Bank Name:
Bank ABA Number:
Bank Address:

For credit to:
Special Instructions:


Buyer:		Seller:
Great Hill Partners, LLC

By:
Name:	Laurie T. Gerber		Wayne F. Gorsek
Title:	Chief Financial Officer

EX-99.6 7 dex996.htm ESCROW AGREEMENT (SWAN LAKE INVESTMENTS, LLC) Escrow Agreement (Swan Lake Investments, LLC)

Exhibit 6

BNY MELLON, NATIONAL ASSOCIATION

ESCROW AGREEMENT

This Escrow Agreement, dated as of March 23, 2010, is by and among Great Hill Investors, LLC, a Massachusetts limited liability company, having its principal place of business at One Liberty Square, Boston, MA 02109, Great Hill Equity Partners III, L.P., a Delaware limited liability company, having its principal place of business at One Liberty Square, Boston, MA 02109, Great Hill Equity Partners IV, L.P., having its principal place of business at One Liberty Square, Boston, MA 02109 (collectively, “Buyer”), Swan Lake Investments, LLC, a North Carolina limited liability company, having its principal place of business at 2702 Swan Lake Drive, High Point, NC 27262 (“Seller”) (collectively, the Buyer and the Seller are herein referred to as the “Escrow Parties”), and BNY Mellon, National Association, a national banking association with its principal place of business at BNY Mellon Center, 201 Washington, Street, Boston, MA 02108 (the “Escrow Agent”).

WHEREAS, pursuant to the Stock Purchase Agreement of even date herewith (the “Stock Purchase Agreement”), Buyer has purchased, and Seller has sold, an aggregate of 302,819 shares of Common Stock (the “Shares”) of Vitacost.com, Inc. (the “Company”) for a purchase price of $11.25 per share, or $3,406,713.75 in the aggregate (the “Sale Proceeds”), exchanging all necessary instruments of transfer for the Shares against payment therefor as of the date hereof (the “Sale”), and

2. Establishment of Escrow. Upon the execution of this Agreement, Buyer shall (a) cause $3,406,713.75 to be deposited with the Escrow Agent (the “Initial Deposit”), and Escrow Agent shall promptly upon request acknowledge to the Escrow Parties or any of them receipt of any funds so deposited; and (b) deliver one fully executed original of this Agreement to the Escrow Agent in accordance with the Notice section below, with a copy to the Escrow Agent’s attorney. The Initial Deposit and all additional amounts now or hereafter deposited with the Escrow Agent, together with all interest, dividends and other income earned, shall be referred to as the “Escrow Fund.” The Escrow Parties acknowledge that the sum held in escrow hereunder may be reduced from time to time during the term hereof pursuant to the terms of this Agreement. Accordingly, the term “Escrow Fund” shall refer both to the Initial Deposit and to such lesser or greater amount as may be held pursuant hereto at any point during the term hereof.

3. Customer Identification and TIN Certification.

deposit the Escrow Fund in money market deposit accounts at BNY Mellon, National Association. Deposits shall in all instances be subject to the Escrow Agent’s standard funds availability policy. The Escrow Agent shall not be responsible for any loss due to interest rate fluctuation or early withdrawal penalty. The Escrow Parties understand that deposits of the Escrow Fund are not necessarily insured by the United States Government or any agency or instrumentality thereof, or of any state or municipality, and that such deposits do not necessarily earn a fixed rate of return. In no instance shall the Escrow Agent have any obligation to provide investment advice of any kind. The Escrow Agent shall not be liable or responsible for any loss resulting from any deposits made pursuant to this Section 4, other than as a result of the gross negligence or willful misconduct of the Escrow Agent.

5. Release of the Escrow Fund.

7. Responsibilities and Liability of Escrow Agent.

In the event that the Escrow Agent shall be uncertain as to its duties or rights under this Agreement, or shall receive any certificate, statement, request, notice, advice, instruction, direction or other agreement or instrument from any other party with respect to the Escrow Funds which, in the Escrow Agent’s reasonable and good faith opinion, is in conflict with any of the provisions of this Agreement, or shall be advised that a dispute has arisen with respect to the Escrow Fund or any part thereof, the Escrow Agent shall be entitled, without liability to any person, to refrain from taking any action other than to keep safely the Escrow Fund until the Escrow Agent shall be directed otherwise in accordance with Joint Written Instructions or an order of a court with jurisdiction over the Escrow Agent. The Escrow Agent shall be under no duty to institute or defend any legal proceedings, although the Escrow Agent may, in its discretion and at the expense of the Escrow Parties as provided in subsections (c) or (d) immediately below, institute or defend such proceedings.

If to Buyer:

Great Hill Partners, LLC

One Liberty Square

Boston, MA 02109

Attention: Laurie T. Gerber

Chief Financial Officer

Tel: (617) 790-9430

Fax: (617) 790-9401

Copy to (which shall not constitute notice to Buyer):

Edwards Angell Palmer & Dodge LLP

111 Huntington Avenue

Boston, MA 02199

Attention: Matthew J. Gardella, Esq.

Jill Hanson, Esq.

Tel: (617) 239-0789

Fax: (866) 955-8776

If to Seller:

Swan Lake Investments, LLC

2702 Swan Lake Drive

High Point, NC 27262

Attention: John J. Walker

Tel:

If to the Escrow Agent:

BNY Mellon National Association

BNY Mellon Center

201 Washington Street

Boston, MA 02108

Facsimile: 617-722-7641

Attention: Meredith Mitchell, Vice President

Kimberly Langford, Escrow Administrator

Copy (which shall not constitute notice to the Escrow Agent) to:

Bruce D. Berns, Esq.

Abendroth, Berns & Warner LLC

40 Grove Street, Suite 375

Wellesley, MA 02482

Facsimile: (781) 237-8891

Buyer:

Laurie T. Gerber and John Dwyer, Great Hill Partners, LLC

(tel: 617-790-9430; email: lgerber@greathillpartners.com)

(tel: 617-790-9400 ; email: jdwyer@greathillpartners.com)

Matthew J. Gardella, Esq. and Jill Hanson, Esq.

Edwards Angell Palmer & Dodge LLP

(tel: 617-239-0789; email: mgardella@eapdlaw.com)

(tel: 617-239-0849; email: jhanson@eapdlaw.com)

Seller:

Swan Lake Investments, LLC, c/o John J. Walker

(tel: ______________; email: ____________________)

that any assignee satisfies the Escrow Agent’s requirements set forth in Section 3(b) above. This Agreement may not be assigned by the Escrow Agent, except that upon prior written notice to the Escrow Parties, the Escrow Agent may assign this Agreement to an affiliated or successor bank or other qualified bank entity.

18. Governing Law. This Escrow Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to principles of conflicts of law.

19. Counterparts and Facsimile Execution. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. The exchange of copies of this Escrow Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Escrow Agreement as to the parties and may be used in lieu of the original Escrow Agreement for all purposes (and such signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes).

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.


BUYERS:

Great Hill Investors, LLC

By:		/s/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager

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/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager

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/ Christopher S. Gaffney
Name:		Christopher S. Gaffney
Title:		A Manager

[First Signature Page to the Escrow Agreement]


SELLER: Swan Lake Investments, LLC

By:		/s/ John J. Walker
Name:		John J. Walker
Title:		Manager

[Second Signature Page to the Escrow Agreement]


BNY MELLON, NATIONAL ASSOCIATION

BY:		/s/ Mary E. Gooding
NAME:		Mary E. Gooding
TITLE:		Senior Vice President

[Third and Final Signature Page to the Stock Purchase Agreement]

EXHIBIT A

JOINT WRITTEN INSTRUCTIONS

FOR RELEASE OF ESCROW FUNDS

Pursuant to Section 5 of the Escrow Agreement dated as of March 23, 2010, by and among Great Hill Investors, LLC, a Massachusetts limited liability company, having its principal place of business at One Liberty Square, Boston, MA 02109, Great Hill Equity Partners III, L.P., a Delaware limited liability company, having its principal place of business at One Liberty Square, Boston, MA 02109, Great Hill Equity Partners IV, L.P., having its principal place of business at One Liberty Square, Boston, MA 02109 (collectively, “Buyer”), Swan Lake Investments, LLC, a North Carolina limited liability company, having its principal place of business at 2702 Swan Lake Drive, High Point, NC 27262 (“Seller”) (collectively, the Buyer and the Seller are herein referred to as the “Escrow Parties”), and BNY Mellon, National Association, a national banking association with its principal place of business at BNY Mellon Center, 201 Washington, Street, Boston, MA 02108 (the “Escrow Agent”), Buyer and Seller hereby instruct the Escrow Agent to release $[ ] from the Escrow Fund in accordance with the following instructions:

Wire Instructions:


Account Name:
Account Number:
Bank Name:
Bank ABA Number:
Bank Address:

For credit to:
Special Instructions:


Buyer:		Seller:
Great Hill Partners, LLC		Swan Lake Investments, LLC

By:		By:
Name:	Laurie T. Gerber	Name:	John J. Walker
Title:	Chief Financial Officer	Title:	Manager

EX-99.7 8 dex997.htm ESCROW AGREEMENT (SALVATORE AND ANNA CARO) Escrow Agreement (Salvatore and Anna Caro)

Exhibit 7

BNY MELLON, NATIONAL ASSOCIATION

ESCROW AGREEMENT

This Escrow Agreement, dated as of March 23, 2010, is by and among Great Hill Investors, LLC, a Massachusetts limited liability company, having its principal place of business at One Liberty Square, Boston, MA 02109, Great Hill Equity Partners III, L.P., a Delaware limited liability company, having its principal place of business at One Liberty Square, Boston, MA 02109, Great Hill Equity Partners IV, L.P., having its principal place of business at One Liberty Square, Boston, MA 02109 (collectively, “Buyer”), Salvatore and Anna Caro, individuals whose residential address is at 9 Navajo Drive, Springfield, IL 62711 (together, the “Seller”) (collectively, the Buyer and the Seller are herein referred to as the “Escrow Parties”), and BNY Mellon, National Association, a national banking association with its principal place of business at BNY Mellon Center, 201 Washington, Street, Boston, MA 02108 (the “Escrow Agent”).

WHEREAS, pursuant to the Stock Purchase Agreement of even date herewith (the “Stock Purchase Agreement”), Buyer has purchased, and Seller has sold, an aggregate of 329,090 shares of Common Stock (the “Shares”) of Vitacost.com, Inc. (the “Company”) for a purchase price of $11.25 per share, or $3,702,262.50 in the aggregate (the “Sale Proceeds”), exchanging all necessary instruments of transfer for the Shares against payment therefor as of the date hereof (the “Sale”), and

2. Establishment of Escrow. Upon the execution of this Agreement, Buyer shall (a) cause $3,702,262.50 to be deposited with the Escrow Agent (the “Initial Deposit”), and Escrow Agent shall promptly upon request acknowledge to the Escrow Parties or any of them receipt of any funds so deposited; and (b) deliver one fully executed original of this Agreement to the Escrow Agent in accordance with the Notice section below, with a copy to the Escrow Agent’s attorney. The Initial Deposit and all additional amounts now or hereafter deposited with the Escrow Agent, together with all interest, dividends and other income earned, shall be referred to as the “Escrow Fund.” The Escrow Parties acknowledge that the sum held in escrow hereunder may be reduced from time to time during the term hereof pursuant to the terms of this Agreement. Accordingly, the term “Escrow Fund” shall refer both to the Initial Deposit and to such lesser or greater amount as may be held pursuant hereto at any point during the term hereof.

3. Customer Identification and TIN Certification.

5. Release of the Escrow Fund.

7. Responsibilities and Liability of Escrow Agent.

If to Buyer:

Great Hill Partners, LLC

One Liberty Square

Boston, MA 02109

Attention: Laurie T. Gerber

Chief Financial Officer

Tel: (617) 790-9430

Fax: (617) 790-9401

Copy to (which shall not constitute notice to Buyer):

Edwards Angell Palmer & Dodge LLP

111 Huntington Avenue

Boston, MA 02199

Attention: Matthew J. Gardella, Esq.

Jill Hanson, Esq.

Tel: (617) 239-0789

Fax: (866) 955-8776

If to Seller:

Salvatore and Anna Caro

9 Navajo Drive

Springfield, IL 62711

Tel:

Fax:

If to the Escrow Agent:

BNY Mellon National Association

BNY Mellon Center

201 Washington Street

Boston, MA 02108

Facsimile: 617-722-7641

Attention: Meredith Mitchell, Vice President

Kimberly Langford, Escrow Administrator

Copy (which shall not constitute notice to the Escrow Agent) to:

Bruce D. Berns, Esq.

Abendroth, Berns & Warner LLC

40 Grove Street, Suite 375

Wellesley, MA 02482

Facsimile: (781) 237-8891

Buyer:

Laurie T. Gerber and John Dwyer, Great Hill Partners, LLC

(tel: 617-790-9430; email: lgerber@greathillpartners.com)

(tel: 617-790-9400; email: jdwyer@greathillpartners.com)

Matthew J. Gardella, Esq. and Jill Hanson, Esq.

Edwards Angell Palmer & Dodge LLP

(tel: 617-239-0789; email: mgardella@eapdlaw.com)

(tel: 617-239-0849; email: jhanson@eapdlaw.com)

Seller:

Salvatore and Anna Caro

(tel: ___________; facsimile: ____________)

18. Governing Law. This Escrow Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to principles of conflicts of law.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.


BUYERS:

Great Hill Investors, LLC

By:		/s/ Christopher S. Gaffney
Name: Christopher S. Gaffney
Title: A Manager


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/ Christopher S. Gaffney
Name: Christopher S. Gaffney
Title: A Manager


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/ Christopher S. Gaffney
Name: Christopher S. Gaffney
Title: A Manager

[First Signature Page to the Escrow Agreement]

SELLER:

/s/ Salvatore Caro

Name: Salvatore Caro

/s/ Anna Caro

Name: Anna Caro

[Second Signature Page to the Escrow Agreement]


BNY MELLON, NATIONAL ASSOCIATION

BY:		/s/ Mary E. Gooding
NAME:		Mary E. Gooding
TITLE:		Senior Vice President

[Third and Final Signature Page to the Stock Purchase Agreement]

EXHIBIT A

JOINT WRITTEN INSTRUCTIONS

FOR RELEASE OF ESCROW FUNDS

Pursuant to Section 5 of the Escrow Agreement dated as of March 23, 2010, by and among Great Hill Investors, LLC, a Massachusetts limited liability company, having its principal place of business at One Liberty Square, Boston, MA 02109, Great Hill Equity Partners III, L.P., a Delaware limited liability company, having its principal place of business at One Liberty Square, Boston, MA 02109, Great Hill Equity Partners IV, L.P., having its principal place of business at One Liberty Square, Boston, MA 02109 (collectively, “Buyer”), Salvatore and Anna Caro, individuals whose residential address is at 9 Navajo Drive, Springfield, IL 62711 (together, the “Seller”) (collectively, the Buyer and the Seller are herein referred to as the “Escrow Parties”), and BNY Mellon, National Association, a national banking association with its principal place of business at BNY Mellon Center, 201 Washington, Street, Boston, MA 02108 (the “Escrow Agent”), Buyer and Seller hereby instruct the Escrow Agent to release $[ ] from the Escrow Fund in accordance with the following instructions:

Wire Instructions:


Account Name:
Account Number:
Bank Name:
Bank ABA Number:
Bank Address:

For credit to:
Special Instructions:


Buyer:	Seller:
Great Hill Partners, LLC

By:
Name: Laurie T. Gerber		Salvatore and Anna Caro
Title: Chief Financial Officer

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