-----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, L3AEcSme8nyl6ggzrcGKLgurd+WKS/zadQFBPOCzZdTtZs7BqOmwbGTkpE3fEnLK 2vvKmeCsb6MkYE4VAFihFQ== 0001072588-10-000099.txt : 20100407 0001072588-10-000099.hdr.sgml : 20100407 20100406192648 ACCESSION NUMBER: 0001072588-10-000099 CONFORMED SUBMISSION TYPE: SC 13G/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20100407 DATE AS OF CHANGE: 20100406 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Gorsek Wayne CENTRAL INDEX KEY: 0001472630 FILING VALUES: FORM TYPE: SC 13G/A MAIL ADDRESS: STREET 1: C/0 VITACOST.COM, INC. STREET 2: 5400 BROKEN SOUND BLVD., NW - SUITE 500 CITY: BOCA RATON STATE: FL ZIP: 33487 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 13G/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-85269 FILM NUMBER: 10735424 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 SC 13G/A 1 gorsek13ga.txt SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13G/A AMENDMENT #1 Under the Securities Exchange Act of 1934 Vitacost.com, Inc. (Name of Issuer) Common Stock (Title of Class of Securities) 092847A20 0 (CUSIP Number) May 1994 (Date of Event which Requires Filing of this Statement) Check the appropriate box to designate the rule pursuant to which this Schedule is filed: [ ] Rule 13d-1(b) [ ] Rule 13d-(c) [x] Rule 13d-1(d) *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 the disclosures provided in a prior cover page. The information required in 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 ("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). - -------------------------------------------------------------------------------- CUSIP No.: 092847A20 0 1) Names of Reporting Persons Wayne Gorsek 2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [ ] 3) SEC Use Only 4) Citizenship or Place of Organization USA Number of 5) Sole Voting Power 20,000* Shares Beneficially 6) Shared Voting Power 20,000* Owned by Each 7) Sole Dispositive Power 20,000* Reporting Person With 8) Shared Dispositive Power 20,000* 9) Aggregate Amount Beneficially Owned by Each Reporting Person 20,000* 10) Check if the Aggregate Amount in Row (9) Excludes Certain Shares 11) Percent of Class Represented by Amount in Row (9) 7.28% 12) Type of Reporting Person IN * On March 23, 2010, Mr. Gorsek sold 4,787,788 of his shares to Great Hill Equity Partners III, L.P. and Great Hill Equity Partners IV, L.P. in a Share Purchase Agreement. The Stock Purchase Agreement is attached hereto as Exhibit 99. Mr. Gorsek still holds 20,000 shares (pre reverse split), which have not yet been issued by the transfer agent. The percentage of class is based upon the number of shares issued and outstanding at October 31, 2009 as reported in Issuers' 10-Q filed on November 16, 2009. 2 - -------------------------------------------------------------------------------- Item 1(a) Name of Issuer: Vitacost.com, Inc. Item 1(b) Address of Issuer's Principal Executive Offices: 5400 Broken Sound Blvd., NW Suite 500 Boca Raton, FL 33487 Item 2(a) Name of Person Filing: Wayne Gorsek Item 2(b) Address of Principal Business Office or, if none, Residence: 360 E. Desert Inn Loft 1203 Las Vegas, NV 89109 Item 2(c) Citizenship: USA Item 2(d) Title of Class of Securities: Common Stock Item 2(e) CUSIP Number: 092847A20 0 Item 3. If this statement is filed pursuant to Rules 13d-1(b), or 13d-2(b), check whether the person filing is a: (a) [ ] Broker or Dealer registered under Section 15 of the Act (15 U.S.C. 780) (b) [ ] Bank as defined in section 3(a)(6) of the Act (15 U.S.C. 780) (c) [ ] Insurance Company as defined in section 3(a)(19) of the Act (15 U.S.C. 780) (d) [ ] Investment Company registered under section 8 of the Investment Company Act of 1940 (U.S.C. 1813) (e) [ ] Investment Adviser in accordance with ss. 240.13d-1(b)(1) (ii)(E) (f) [ ] Employee Benefit Plan or endowment fund in accordance with ss. 240.13d-1(b)(1)(ii)(F) (g) [ ] Parent Holding Company or control person in accordance with ss. 240.13d-1(b)(1)(ii)(G) (h) [ ] savings associations as defined in Section 3(b) of the Federal Deposit Insurance Act (12 U.S.C. 1813) (i) [ ] church plan that is excluded from the definition of an investment company under section 3(c)(14) of the Invest- ment Company Act of 1940 (15 U.S.C. 80a-3) (j) [ ] Group, in accordance withss.240.13d-1(b)(1)(ii)(J) 3 - -------------------------------------------------------------------------------- Item 4. Ownership (a) Amount Beneficially Owned: 20,000 (b) Percent of Class: 7.28% Based on calculations made in accordance with Rule 13d-3(d) and there being 27,488,353 shares of common stock of the Issuer outstanding as of October 31, 2009 as reported in the Issuer's Form 10-Q (File No. 001-34468) filed with the Securities and Exchange Commission on November 16, 2009, the Reporting Person beneficially owns approximately 7.28% of the outstanding shares of the Issuer's common stock. (c) Number of shares as to which such person has: (i) sole power to vote or to direct the vote 20,000 (ii) shared power to vote or to direct the vote 20,000 (iii) sole power to dispose or to direct the disposition of 20,000 (iv) shared power to dispose or to direct the disposition of 20,000 Item 5. Ownership of Five Percent or Less of a Class If this statement is being filed to report the fact that as of the date hereof the reporting person has ceased to be the beneficial owner of more than five percent of the class of securities, check the following [X]. Item 6. Ownership of More than Five Percent on Behalf of Another Person Not applicable Item 7. Identification and Classification of the Subsidiary Which Acquired the Security Being Reported on By the Parent Holding Company Not applicable Item 8. Identification and Classification of Members of the Group Not applicable Item 9. Notice of Dissolution of Group Not applicable 4 - -------------------------------------------------------------------------------- Item 10. Certification Signature. After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: April 4, 2010 Signature: /s/ Wayne Gorsek - -------------------------------------------------------------------------------- EX-99 2 ex99-1.txt EXHIBIT 99.1 Gorsek's Agreement Edwards Angell Palmer & Dodge LLP Draft of 3/16/2010 Privileged & Confidential Attorney-Client Communication STOCK PURCHASE AGREEMENT This Agreement (this "Agreement"), dated as of March 23, 2010, is by and among 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 StateplaceDelaware corporation ("Vitacost"), and the Buyers desire to purchase the Shares. 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 pursuant to the wire transfer instructions set forth on Schedule A, and the Seller shall transfer the Shares to [a DTC participant account]1 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. 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). - ----------------- 1 Subject to confirmation with issuer's counsel and Seller's broker. (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. (c) Each Buyer hereby represents and warrants to the Seller that: (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 2 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. Seller hereby expressly acknowledges that 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) are third party beneficiaries to this Section 3(a) and have all rights of enforcement with respect thereto. (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; 3 (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. Seller hereby expressly acknowledges that Vitacost is a third party beneficiary to this Section 3(b) and have all rights of enforcement with respect thereto. 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. 4 (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: 561-704-3240 Fax: With a copy to: Attention: Tel: Fax: If to Buyers: Great Hill Partners 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 5 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. Except as set forth in Section 3 of this Agreement, 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] 6 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 Equity Partners III, L.P. by: Great Hill Partners GP III, L.P., its general partner by: GHP III, LLC, its general partner by:________________, 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:________________, a manager [First Signature Page to the Stock Purchase Agreement] SELLER: ----------------------------- Name: Wayne F. Gorsek [Second and Final Signature Page to the Stock Purchase Agreement] SCHEDULE A WIRE TRANSFER INSTRUCTIONS -----END PRIVACY-ENHANCED MESSAGE-----