Unassociated Document


    Exhibit
10.38

    


    EXECUTION
VERSION

    


    REGISTRATION
RIGHTS AGREEMENT

     

    This
REGISTRATION RIGHTS AGREEMENT, dated as of October 8, 2010 (this “Agreement”), is
entered into by and among Vitacost.com, Inc., a Delaware corporation (the “Company”), and Great
Hill Investors, LLC, Great Hill Equity Partners III, L.P., Great Hill Partners
GP III, L.P., GHP III, LLC, Great Hill Equity Partners IV, L.P., Great Hill
Partners GP IV, L.P. and GHP IV, LLC (each a “Holder” and together,
the “Holders”).

     

    WHEREAS,
the Company and the Holders have entered into that certain Stockholder
Agreement, dated as of the date hereof (the “Stockholder
Agreement”); and

     

    WHEREAS,
in connection with the Stockholder Agreement, the Company has agreed to provide
the Holders with certain registration rights with respect to the Registrable
Securities (as defined herein) as set forth herein.

     

    NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, intending to be legally bound, the parties
hereto agree as follows:

     

    ARTICLE
I

    DEFINITIONS

     

    Section
1.01.         Definitions.  The
following terms shall have the meanings ascribed to them below:

     

    “Agreement” means this
Agreement, as amended, modified or supplemented from time to time, in accordance
with the terms hereof, together with any exhibits, schedules or other
attachments thereto.

     

    “Commission” means the
United States Securities and Exchange Commission or any other federal agency at
the time administering either the Securities Act or the Exchange
Act.

     

    “Common Stock” means
common stock, $0.00001 par value per share, of the Company (and any other
securities into which or for which the Common Stock may be converted or
exchanged pursuant to a dividend, stock split, plan of recapitalization,
reorganization, merger, sale of assets or otherwise).

     

    “Company” has the
meaning set forth in the preamble to this Agreement.

     

    “Controlling Person”
has the meaning set forth in Section 3.01.

     

    “Damages” has the
meaning set forth in Section 3.01.

     

    “Demand Registration”
has the meaning set forth in Section 2.01(a).

     

    “Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    “Full Cooperation”
means, in connection with any Demand Registration, where, in addition to the
cooperation otherwise required by this Agreement, members of senior management
of the Company (including the chief executive officer and chief financial
officer) fully cooperate with the underwriter(s) in connection with all
reasonable and customary recommendations and requests of such underwriter(s),
and make themselves available upon reasonable notice to participate in due
diligence meetings or calls, “road-show”
and other customary marketing activities in such locations (domestic and
foreign) as recommended by the underwriter(s) (including one-on-one meetings
with prospective purchasers of the Registrable Securities).

     

    “Holder” and “Holders” has the
meaning set forth in the preamble to this Agreement, and shall include any
Permitted Transferee that becomes a Holder pursuant to Section
4.05.

     

    “Holders’ Counsel” has
the meaning set forth in Section 2.04.

     

    “Indemnified Party”
has the meaning set forth in Section 3.03.

     

    “Indemnifying Party”
has the meaning set forth in Section 3.03.

     

    “FINRA” means the
Financial Industry Regulatory Authority, Inc.

     

    “Permitted Transferee”
has the meaning set forth in Section 4.05.

     

    “Person” shall mean
any individual, corporation, partnership, firm, limited liability company, joint
venture, trust, association, unincorporated organization, university, group,
joint-stock company or other entity.

     

    “Piggyback
Registration” has the meaning set forth in Section 2.03(a).

     

    “Registrable
Securities” means, subject to the last sentence of this definition, the
shares of Common Stock held beneficially or of record by any of the Holders,
including shares of Common Stock (x) owned by any of the Holders prior to the
date of this Agreement and (y) acquired by way of a dividend, stock split,
recapitalization, plan of reorganization, merger, sale of assets or
otherwise.  As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (i) a Registration
Statement with respect to the resale of such shares of Common Stock has been
declared effective by the Commission and such shares of Common Stock have been
sold pursuant to such effective Registration Statement, (ii) such shares of
Common Stock shall have been or all remaining Registrable Securities held by
such Holder may immediately be sold under Rule 144 (or any similar provision
then in force) under the Securities Act, (iii) such shares of Common Stock
(A) otherwise have been transferred, (B) are represented by a new certificate or
other evidence of ownership for such Common Stock not bearing a restrictive
legend against transfer under the Securities Act, (C) are not subject to any
stop order and (D) may be publicly resold by the Person receiving such
certificate without complying with the registration requirements of the
Securities Act, or (iv) such shares of Common Stock shall have ceased to be
outstanding.  With respect to the 5,419,697 shares of Common Stock
beneficially owned by the Holders as of the date of this Agreement, 2,709,848 of
such shares shall immediately constitute Registrable Securities, and the
remaining 2,709,849 shares (in addition to all shares of Common Stock acquired
by the Holders after the date of this Agreement, however acquired) shall become
Registrable Securities on the date that is 18 months after the date of this
Agreement.

     

    
      
         


      

      
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    “Registration
Expenses” has the meaning set forth in Section 2.04.

     

    “Registration
Statement” means any registration statement of the Company on an
appropriate registration form under the Securities Act that covers any of the
Registrable Securities (including, as applicable, a Shelf Registration
Statement), including the prospectus, amendments and supplements thereto, and
all exhibits and material incorporated by reference therein.

     

    “Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.

     

    “Shelf Registration
Statement” has the meaning set forth in Section 2.02.

     

    “Stockholder
Agreement” means the Stockholder Agreement, dated of even date herewith,
by and between the Company, on the one hand, and Great Hill Investors, LLC,
Great Hill Equity Partners III, L.P. and Great Hill Equity Partners IV, L.P., on
the other hand.

     

    “Suspension Notice”
has the meaning set forth in Section 2.07(a).

     

    “Underwriter” means a
securities dealer who purchases any Registrable Securities as principal in an
underwritten offering and not as part of such dealer’s market-making
activities.

     

    “Underwriters’ Maximum
Number” means, for any Demand Registration or Piggyback Registration,
that number of securities to which such registration should, in the opinion of
the managing underwriter(s) of such registration, in the light of marketing
factors, be limited.

     

    ARTICLE
II

    REGISTRATION
RIGHTS

     

    Section
2.01.         Demand For Non-Shelf
Registration; Underwritten Offering.

     

    (a)           Requests for
Registration.  Subject to the blackout provisions contained in
Section 2.07 and the limitations set forth in this Section 2.01, the
Holders of a majority of Registrable Securities shall have the right to require
the Company to file a Registration Statement covering all or part of their
respective Registrable Securities for an underwritten registration under the
Securities Act (a “Demand Registration”)
by delivering a written request therefor to the Company specifying the number of
Registrable Securities to be included in such underwritten registration by such
Holder or Holders.  As soon as practicable after the receipt of such
demand, the Company shall use commercially reasonable efforts to effect such
registration (including, without limitation, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) of the Registrable Securities that the
Company has been so requested to register; provided that the Holders
shall not make a request for a Demand Registration under this Section 2.01(a) to
offer in the aggregate less than 50% of all Registrable Securities; and provided, further, that the Holders
will not be entitled to require the Company to effect (x) more than one Demand
Registration during any twelve-month period or (y) more than two Demand
Registrations in the aggregate under this Agreement.

     

    
      
         


      

      
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    (b)           Underwriting.  The
offering of the Registrable Securities pursuant to such Demand Registration
shall be in the form of an underwritten public offering only.  The
Company shall (together with the Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing Underwriter selected for such underwriting by
the Company and reasonably acceptable to a majority of the Holders proposing to
distribute their securities through such underwriting, which underwriting
agreement shall have substantially the same indemnification provisions as set
forth in this Agreement.

     

    (c)           Priority on Demand
Registration.  If, in connection with a Demand Registration,
the managing Underwriter(s) give written advice to the Company of an
Underwriters’ Maximum Number, then: (i) the Company shall so advise all Holders
of Registrable Securities to be included in such Demand Registration and the
Company will be obligated and required to include in such registration that
number of Registrable Securities requested by the Holders thereof to be included
in such registration and that does not exceed such Underwriters’ Maximum Number
and such Registrable Securities shall be allocated pro rata among the Holders
thereof on the basis of the number of Registrable Securities requested to be
included therein by each such Holder.  No shares of Common Stock held
by any Person other than Registrable Securities held by the Holders shall be
included in a Demand Registration without the prior written consent of the
holders of a majority in interest of the Registrable Securities.

     

    (d)           Effected Demand
Registration.  A registration will not be deemed to have been
effected as a Demand Registration unless it has been declared effective by the
Commission and the Company has complied in all material respects with its
obligations under this Agreement with respect thereto; provided, however, that if, after it
has become effective, such registration or the related offer, sale or
distribution of Registrable Securities thereunder is or becomes the subject of
any stop order, injunction or other order or requirement of the Commission or
any other governmental or administrative agency, or if any court prevents or
otherwise limits the sale of the Registrable Securities pursuant to the
registration, and, as a result thereof, 66-2/3% of the Registrable Securities
covered thereby have not been sold, or if the Company fails to provide Full
Cooperation, then such registration will be deemed not to have been effected for
purposes of clause (y) of the second proviso to Section 2.01(a).  If
(i) a registration requested pursuant to this Section 2.01 is deemed not to have
been effected or (ii) the registration requested pursuant to this Section 2.01
does not remain continuously effective until 45 days after the commencement of
the distribution by the Holders of the Registrable Securities included in such
underwritten offering, then the Company shall continue to be obligated to effect
the underwritten registration of the Registrable Securities included in such
Demand Registration pursuant to this Section 2.01.  In circumstances
not including the events described in the immediately two preceding sentences of
this Section 2.01(d), each Holder of Registrable Securities shall be permitted
voluntarily to withdraw all or any part of its Registrable Securities from a
Demand Registration at any time prior to the commencement of marketing of such
Demand Registration, provided that such
registration nonetheless shall count as a Demand Registration for purposes of
clause (y) of the second proviso to Section 2.01(a).

     

    
      
         


      

      
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    Section
2.02.         Shelf
Registration.  At any time following the date that this 18
months following the date of this Agreement (provided that at such time
the Company is eligible to use Form S-3 (or a substantially equivalent
short-form registration statement) for a secondary offering), upon the request
of Holders holding a majority of the Registrable Securities, the Company shall
use commercially reasonable efforts to promptly file a Registration Statement on
Form S-3 (or such other substantially equivalent short-form registration
statement) under the Securities Act providing for the resale pursuant to Rule
415 from time to time by the Holders of such number of shares of Registrable
Securities requested by the Holders to be registered thereby (including the
prospectus, amendments and supplements to the shelf Registration Statement or
prospectus, including pre- and post-effective amendments, all exhibits thereto
and all material incorporated by reference or deemed to be incorporated by
reference, if any, in such shelf registration statement, the “Shelf Registration
Statement”).  The Company shall use commercially reasonable
efforts to cause the Shelf Registration Statement to be declared effective by
the SEC as promptly as practicable following such filing.  The Company
shall maintain the effectiveness of the Shelf Registration Statement for a
period of 18 months in the aggregate (or until such earlier time as all of the
Registrable Securities can be sold without restriction pursuant to Rule 144
under the Securities Act).  Subject to Section 6.1 of the Stockholder
Agreement, the plan of distribution contained in the Shelf Registration
Statement shall be substantially in the form attached as Exhibit A hereto,
unless otherwise determined by the Company and the Holders holding a majority of
the Registrable Securities.  No shares of Common Stock held by any
Person other than Registrable Securities held by the Holders shall be included
in a Shelf Registration Statement without the prior written consent of the
holders of a majority in interest of the Registrable Securities.

     

    Section
2.03.         Piggyback
Registration.

     

    (a)           Notice of Piggyback
Registration.  If (and on each occasion that) the Company
proposes to register any of its securities under the Securities Act either for
the Company’s own account or for the account of any of its stockholders (other
than (A) securities to be issued solely in connection with any acquisition of or
business combination with any entity or business, (B) securities issuable solely
upon the exercise of stock options, (C) securities issuable solely pursuant to
employee benefit plans, or (D) for Holders pursuant to Section 2.01 or 2.02
hereof entitled to participate in a registration) (each such registration not
withdrawn or abandoned prior to the effective date thereof being herein called a
“Piggyback
Registration”), the Company will give written notice to all Holders of
such proposal not later than the earlier to occur of (A) the 10th day following
the receipt by the Company of notice of exercise of any registration rights by
any Persons, and (B) the 20th day prior to the anticipated filing date of such
Piggyback Registration.

     

    (b)           Piggyback
Rights.  Subject to the provisions contained in paragraph (c)
of this Section 2.03 and in the last sentence of this paragraph (b), the Company
will be obligated and required to use commercially reasonable efforts to include
in each Piggyback Registration such Registrable Securities as requested in a
written notice from any Holder delivered to the Company no later than 15 days
following delivery of the notice from the Company specified in Section
2.03(a).  The Holders of Registrable Securities shall be permitted to
withdraw all or any part of their shares from any Piggyback Registration at any
time prior to the effective date of such Piggyback Registration, except as
otherwise provided in any written agreement with the Company’s underwriter(s)
establishing the terms and conditions under which such Holders would be
obligated to sell such securities in such Piggyback Registration.

     

    
      
         


      

      
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    (c)           Company Officers and
Directors.  Subject to Section 2.03(d), the Company may, in its
sole discretion, offer to include any shares of Common Stock beneficially owned
by any of the Company’s directors or executive officers in any Piggyback
Registration on the same terms and conditions applicable to the Holders of the
Registrable Securities pursuant to this Section 2.03.

     

    (d)           Priority on Piggyback
Registrations.  If a Piggyback Registration is an underwritten
registration, and the managing underwriter(s) shall give written advice to the
Company of an Underwriters’ Maximum Number, then: (i) the Company shall be
entitled to include in such registration that number of securities which the
Company proposes to offer and sell for its own account in such registration and
which does not exceed the Underwriters’ Maximum Number, and (ii) if the
Underwriters’ Maximum Number exceeds the number of securities which the Company
proposes to offer and sell for its own account in such registration, then such
excess, up to the Underwriters’ Maximum Number, shall be allocated pro rata
among the Holders and the Company’s directors and executive officers on the
basis of the number of securities requested to be included therein by each such
Person.

     

    (e)           Selection of
Underwriter(s).  In any Piggyback Registration, the Company
shall have the right to select the investment banker(s) and managing
underwriter(s) in such registration.

     

    Section
2.04.         Registration
Expenses.  In
connection with registrations pursuant to Section 2.01, 2.02 or 2.03 hereof, the
Company shall pay all of the registration costs and expenses incurred in
connection with the registration thereunder (the “Registration
Expenses”), including, without limitation, all: (i) registration and
filing fees and expenses, including, without limitation, those related to
filings with the Commission, (ii) fees and expenses of compliance with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registrable
Securities), (iii) reasonable processing, duplicating and printing
expenses, including, without limitation, expenses of printing prospectuses
reasonably requested by any Holder, (iv) of the Company’s internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties, the expense of any liability
insurance and the expense of any annual audit or quarterly review),
(v) fees and expenses incurred in connection with listing the Registrable
Securities for trading on a national securities exchange, including, without
limitation, fees and expenses of The NASDAQ Stock Market, (vi) fees and expenses
in connection with the preparation of the registration statement and related
documents covering the Registrable Securities, (vii) fees and expenses, if any,
incurred with respect to any filing with FINRA, (viii) any documented
out-of-pocket expenses of the Underwriter(s) incurred with the approval of the
Company, (ix) the cost of providing any CUSIP or other identification numbers
for the Registrable Securities, (x) fees and expenses and disbursements of
counsel for the Company and fees and expenses for independent certified public
accountants retained by the Company (including, without limitation, the expenses
of any comfort letters or costs associated with the delivery by independent
certified public accountants of a comfort letter or comfort letters requested),
(xi) fees and expenses of any special experts retained by the Company in
connection with such registration, and (xii) reasonable and documented fees
and expenses of one firm of counsel for the Holders to be selected by the
Holders of a majority of the Registrable Securities to be included in such
registration (“Holders’ Counsel”);
provided, however, that the Company
shall reimburse the Holders for the reasonable and documented fees and
disbursements of each additional counsel retained by any Holder for the purpose
of rendering any opinion required by the Company or the managing Underwriter(s)
to be rendered on behalf of such Holder in connection with any Demand
Registration.  Notwithstanding the foregoing, each Holder shall be
responsible for any underwriting fees, discounts or commissions attributable to
the sale of Registrable Securities pursuant to a Registration
Statement.  The obligation of the Company to bear the expenses
described in this Section 2.04 and to pay or reimburse the Holders for the
expenses described in this Section 2.04 shall apply irrespective of whether any
sales of Registrable Securities ultimately take place.

     

    
      
         


      

      
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    Section
2.05.         Registration
Procedures.  In
the case of each registration effected by the Company pursuant to this
Agreement, the Company shall keep each Holder advised in writing as to the
initiation of each registration and as to the completion thereof.  In
connection with any such registration:

     

    (a)           The
Company will promptly prepare and file with the Commission a Registration
Statement on Form S-1 or another appropriate Securities Act form reasonably
acceptable to the Holders, and use commercially reasonable efforts to cause such
Registration Statement to become and remain effective until the completion of
the distribution contemplated thereby.

     

    (b)           The
Company will promptly prepare and file with the Commission such amendments to
each Registration Statement as may be necessary to keep such Registration
Statement effective for as long as such registration is required to remain
effective pursuant to the terms hereof; cause the prospectus to be supplemented
by any required prospectus supplement, and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all Registrable Securities covered by such Registration Statement
during the applicable period in accordance with the intended methods of
disposition by the Holders set forth in such Registration Statement or
supplement to the prospectus.

     

    
      
         


      

      
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    (c)           The
Company, at least 10 days prior to filing a Registration Statement or at
least five days prior to filing a prospectus or any amendment or supplement
to such Registration Statement or prospectus, will furnish to (i) each
Holder of Registrable Securities covered by such Registration Statement,
(ii) Holders’ Counsel and (iii) each Underwriter of the Registrable
Securities covered by such Registration Statement, copies of such Registration
Statement and each amendment or supplement as proposed to be filed, together
with any exhibits thereto, which documents will be subject to reasonable review
and approval (which approval shall not be unreasonably withheld) by each of the
foregoing Persons within five days after delivery (except that such review
and approval of any prospectus or any amendment or supplement to such
Registration Statement or prospectus must be completed within three days),
and thereafter, furnish to such Holders, Holders’ Counsel and Underwriters, if
any, such number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in such Registration
Statement (including each preliminary prospectus) and such other documents or
information as such Holder, Holders’ Counsel or Underwriters may reasonably
request in order to facilitate the disposition of the Registrable Securities in
accordance with the plan of distribution set forth in the prospectus included in
the Registration Statement; provided, however, that notwithstanding
the foregoing, if the Company intends to file any prospectus, prospectus
supplement or prospectus sticker that does not make any material changes in the
documents already filed, then Holders’ Counsel will be afforded such opportunity
to review such documents prior to filing consistent with the time constraints
involved in filing such document, but in any event no less than one
day.

     

    (d)           The
Company will promptly notify each Holder of any stop order issued or threatened
by the Commission and, if entered, use commercially reasonable efforts to
prevent the entry of such stop order or to remove it as soon as reasonably
possible.

     

    (e)           On
or prior to the date on which the Registration Statement is declared effective,
the Company shall use commercially reasonable efforts to register or qualify
such Registrable Securities under such other securities or blue
sky laws of such jurisdictions as any Holder reasonably requests and do any and
all other lawful acts and things which may be necessary or advisable to enable
the Holders to consummate the disposition in such jurisdictions of such
Registrable Securities, and use commercially reasonable efforts to keep each
such registration or qualification (or exemption therefrom) effective during the
period which the Registration Statement is required to be kept effective; provided that the Company
will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph (e), (ii) subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process in any such
jurisdiction.

     

    (f)           The
Company will notify each Holder, Holders’ Counsel and Underwriter promptly and
(if requested by any such Person) confirm such notice in writing, (i) when
a prospectus or any prospectus supplement or post-effective amendment has been
filed and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the
Commission or any other federal or state governmental authority for amendments
or supplements to a Registration Statement or prospectus or for additional
information to be included in any Registration Statement or prospectus or
otherwise, (iii) of the issuance by any state securities commission or
other regulatory authority of any order suspending the qualification or
exemption from qualification of any of the Registrable Securities under state
securities or blue sky laws or the initiation of any proceedings
for that purpose, and (iv) of the happening of any event that makes any
statement made in a Registration Statement or related prospectus or any document
incorporated or deemed to be incorporated by reference therein untrue or that
requires the making of any changes in such Registration Statement, prospectus or
documents so that they will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements in the Registration Statement and prospectus not misleading
in light of the circumstances in which they were made; and, as promptly as
practicable thereafter, prepare and file with the Commission and furnish a
supplement or amendment to such prospectus so that, as thereafter deliverable to
the purchasers of such Registrable Securities, such prospectus will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.  Each Holder hereby agrees to
keep any disclosures under subsection (iv) above confidential until
such time as a supplement or amendment is filed.

     

    
      
         


      

      
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    (g)           The
Company will furnish customary closing certificates and other deliverables to
the Underwriter(s) and the Holders and enter into customary agreements
satisfactory to the Company (including, if applicable, an underwriting agreement
in customary form) and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of such Registrable
Securities.

     

    (h)           The
Company will make available for inspection by any Underwriter participating in
any disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by any such seller or Underwriter (in each
case after reasonable prior notice and at reasonable times during normal
business hours and without unnecessary interruption of the Company’s business or
operations), all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company’s officers, directors,
employees and independent accountants to supply all information reasonably
requested by any such seller, Underwriter, attorney, accountant or agent in
connection with such registration statement.

     

    (i)    
       The Company, during the period when
the prospectus is required to be delivered under the Securities Act, promptly
will file all documents required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.

     

    (j)  
         The Company shall use
commercially reasonable efforts to cause all such Registrable Securities
registered pursuant hereunder to be listed on each national securities exchange
on which similar securities of the same class issued by the Company are then
listed.

     

    (k)           The
Company shall use commercially reasonable efforts to ensure the obtaining of all
necessary approvals from FINRA.

     

    (l) 
          The Company shall
provide a transfer agent and registrar for all such Registrable Securities not
later than the effective date of such registration statement.

     

    (m)          The
Company shall furnish to each Holder a copy of all documents filed with and all
correspondence from or to the Commission in connection with any such offering of
Registrable Securities.

     

    (n)           The
Company otherwise shall comply with all applicable rules and regulations of the
Commission.

     

    
      
         


      

      
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    (o)           The
Company shall furnish to each Holder, addressed to such Holder, (1) an opinion
of counsel for the Company (which may be the Company’s General Counsel), dated
the effective date of the registration statement and the closing of the sale of
any securities thereunder, as well as a consent to be named in the registration
statement or any prospectus thereto, and (2) comfort letters as
well as an audit opinion and consent to be named in the registration statement
or any prospectus relating thereto signed by the Company’s independent public
accountants who have examined and reported on the Company’s financial statements
included in the registration statement covering substantially the same matters
with respect to the registration statement (and the prospectus included therein)
and (in the case of the accountants’ comfort letters) with
respect to events subsequent to the date of the financial statements, as are
customarily covered in opinions of issuer’s counsel and in accountants’ comfort letters delivered to the underwriters in underwritten
public offerings of securities, to the extent that the Company is required to
deliver or cause the delivery of such opinion or comfort
letters to the underwriters in an underwritten public offering of
securities.

     

    (p)           In
connection with each Demand Registration, cause there to occur Full
Cooperation.

     

    Section
2.06.         Holders’
Obligations.  The
Company may require each Holder to promptly furnish in writing to the Company
such information regarding the distribution of the Registrable Securities as the
Company may from time to time reasonably request and such other information as
may be legally required in connection with such registration, including, without
limitation, all such information as may be requested by the
Commission.  Each Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in
Section 2.05(f) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Holder’s receipt of the copies
of the supplemented or amended prospectus contemplated by
Section 2.05(f) hereof, and, if so directed by the Company, such
Holder will deliver to the Company all copies, other than permanent file copies
then in such Holder’s possession and retained solely in accordance with record
retention policies then-applicable to such Holder, of the most recent prospectus
covering such Registrable Securities at the time of receipt of such
notice.  In the event the Company shall give such notice, the Company
shall extend the period during which such Registration Statement shall be
maintained effective by the number of days during the period from and
including the date of the giving of notice pursuant to
Section 2.05(f) hereof to the date when the Company shall make
available to the Holders a prospectus supplemented or amended to conform with
the requirements of Section 2.05(f) hereof.

     

    Section
2.07.         Blackout
Provisions.

     

    (a)           Notwithstanding
anything in this Agreement to the contrary, by delivery of written notice to the
participating Holders (a “Suspension Notice”)
stating which one or more of the following limitations shall apply to the
addressee of such Suspension Notice, the Company may (1) postpone effecting
a registration under this Agreement, or (2) require such addressee to
refrain from disposing of Registrable Securities under the registration, in
either case for a period of no more than 90 consecutive days from the delivery
of such Suspension Notice (which period may not be extended or
renewed).  The Company may postpone effecting a registration or apply
the limitations on dispositions specified in clause 2 of this Section 2.07(a) if
(x) the Company in good faith determines that such registration or
disposition would materially impede, delay or interfere with any material
transaction then pending on proposed to be undertaken by the Company or any of
its subsidiaries, or (y) the Company in good faith determines that the Company
is in possession of material non-public information the disclosure of which
during the period specified in such notice the Company reasonably believes would
not be in the best interests of the Company; provided that the Company may
not take any action pursuant to this Section 2.07(a) for a period of time
in excess of 135 days in any 12-month period.

     

    
      
         


      

      
        10

        
          

        

      

      
         


      

    


    (b)           If
the Company shall take any action pursuant to clause 2 of Section 2.07(a)
with respect to any participating Holder in a period during which the Company
shall be required to cause a Registration Statement to remain effective under
the Securities Act and the prospectus to remain current, such period shall be
extended for such Person by one day beyond the end of such period for each day
that, pursuant to Section 2.07(a), the Company shall require such Person to
refrain from disposing of Registrable Securities owned by such
Person.

     

    Section
2.08.         Exchange Act
Registration.  The
Company will use its commercially reasonable efforts to timely file with the
Commission such information as the Commission may require under Section 13(a) or
Section 15(d) of the Exchange Act and the Company shall use its commercially
reasonable efforts to take all action as may be required as a condition to the
availability of Rule 144 or Rule 144A under the Securities Act with respect to
its Common Stock.  The Company shall furnish to any holder of
Registrable Securities forthwith upon request such reports and documents as a
holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing a holder to sell any such Registrable Securities without
registration to the extent that such reports or documents are not publicly
available on the Commission’s Electronic Data Gathering, Analysis and Retrieval
system or any successor system thereto.  The Company agrees to use its
commercially reasonable efforts to facilitate and expedite transfers of the
Registrable Securities pursuant to Rule 144 under the Securities Act, which
efforts shall include timely notice to its transfer agent to expedite such
transfers of Registrable Securities.

     

    Section
2.09.         Damages.  The
Company recognizes and agrees that the Holders will not have an adequate remedy
if the Company fails to comply in all material respects with this Article 2 and
that damages may not be readily ascertainable, and the Company expressly agrees
that, in the event of such failure, it shall not oppose an application by the
holder of Registrable Securities or any other Person entitled to the benefits of
this Article 2 requiring specific performance, without the posting of a bond, of
any and all provisions hereof or enjoining the Company from continuing to commit
any such breach of this Article 2.

     

    
      
         


      

      
        11

        
          

        

      

      
         


      

    


    ARTICLE
III

    INDEMNIFICATION

     

    Section
3.01.         Indemnification by the
Company.  The
Company agrees, notwithstanding the termination of this Agreement, to indemnify
and hold harmless, to the fullest extent permitted by law, each Holder and each
of its managers, members, partners, officers, directors, employees and agents,
and each Person, if any, who controls such Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act,
together with the managers, members, partners, officers, directors, employees
and agents of such controlling Person (each, the “Controlling Person”),
from and against any and all losses, claims, damages, liabilities, reasonable
attorneys’ fees, costs and expenses of investigating and defending any such
claim (collectively, “Damages”) and any
action in respect thereof to which such Holder, its managers, members, partners,
officers, directors, employees and agents, and any such Controlling Person may
become subject under the Securities Act or otherwise, insofar as such Damages
(or proceedings in respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or prospectus (or any amendment or supplement thereto) or
any preliminary prospectus, or arise out of, or are based upon, any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances in which they were made, except insofar as the same are based upon
information furnished in writing to the Company by such Holder expressly for use
therein, and shall reimburse such Holder, its managers, members, partners,
officers, directors, employees and agents, and each such Controlling Person for
any legal and other expenses reasonably incurred by such Holder, its managers,
members, partners, officers, directors, employees and agents, or any such
Controlling Person in investigating or defending or preparing to defend against
any such Damages or proceedings; provided, however, that the Company
shall not be liable to such Holder or other indemnitee to the extent that any
such Damages arise out of or are based upon an untrue statement or omission made
in any preliminary prospectus if (i) such Holder failed to send or deliver
a copy of the final prospectus with or prior to the delivery of written
confirmation of the sale by such Holder to the Person asserting the claim from
which such Damages arise in any case where such delivery of the prospectus (as
amended or supplemented) is required by the Securities Act, and (ii) the
final prospectus would have corrected such untrue statement or such omission,
where such failure to deliver the prospectus was not a result of non-compliance
by the Company under Section 2.05(f) of this Agreement.

     

    Section
3.02.         Indemnification by the
Holders.  The
Holders agree, jointly and severally, to indemnify and hold harmless the
Company, its officers, directors, employees and agents and each Person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, together with the managers, members,
partners, officers, directors, employees and agents of such Controlling Person,
to the same extent as the foregoing indemnity from the Company to the Holders,
but only with reference to information related to the Holders, or their plan of
distribution, furnished in writing by the Holders to the Company expressly for
use in any Registration Statement or prospectus, or any amendment or supplement
thereto, or any preliminary prospectus.  No Holders shall be required
to indemnify any Person pursuant to this Section 3.02 for any amount in
excess of the net proceeds of the Registrable Securities sold for the account of
such Holder.

     

    
      
         


      

      
        12

        
          

        

      

      
         


      

    


    Section
3.03.         Conduct of Indemnification
Proceedings.  Promptly
after receipt by any Person (an “Indemnified Party”)
of notice of any claim or the commencement of any action in respect of which
indemnity may be sought pursuant to Section 3.01 or 3.02, the Indemnified
Party shall, if a claim in respect thereof is to be made against the Person
against whom such indemnity may be sought (an “Indemnifying Party”),
notify the Indemnifying Party in writing of the claim or the commencement of
such action; provided
that the failure to notify the Indemnifying Party shall not relieve it from any
liability that it may have to an Indemnified Party otherwise than under
Section 3.01 or 3.02 except to the extent of any actual prejudice resulting
therefrom.  If any such claim or action shall be brought against an
Indemnified Party, and it shall notify the Indemnifying Party thereof, the
Indemnifying Party shall be entitled to participate therein, and, to the extent
that it wishes, jointly with any other similarly notified Indemnifying Party, to
assume the defense thereof with counsel reasonably satisfactory to the
Indemnified Party.  After notice from the Indemnifying Party to the
Indemnified Party of its election to assume the defense of such claim or action,
the Indemnifying Party shall not be liable to the Indemnified Party for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided, that the
Indemnified Party shall have the right to employ separate counsel to represent
the Indemnified Party and its Controlling Persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Indemnified Party against the Indemnifying Party, but the fees and
expenses of such counsel shall be for the account of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or (ii) in the reasonable
opinion of counsel to such Indemnified Party representation of both parties by
the same counsel would be inappropriate due to actual or potential conflicts of
interest between them, it being understood, however, that the Indemnifying Party
shall not, in connection with any one such claim or action or separate but
substantially similar or related claims or actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all Indemnified
Parties.  No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any claim or pending
or threatened proceeding in respect of which the Indemnified Party is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability arising out of such claim or
proceeding.  Whether or not the defense of any claim or action is
assumed by the Indemnifying Party, such Indemnifying Party will not be subject
to any liability for any settlement made without its consent.

     

    ARTICLE
IV

    MISCELLANEOUS

     

    Section
4.01.         No Inconsistent Agreements;
Most-Favored-Nations.  The
Company shall not hereafter enter into any agreement with respect to its
securities which is inconsistent with or violates the rights granted to the
holders of Registrable Securities in this Agreement.  If the Company
grants to any Person any rights with respect to the registration of any shares
of equity securities of the Company or any securities convertible or exercisable
into shares of any equity securities of the Company that are more favorable to
such Person than the rights of the Holders set forth in this Agreement, then the
Company shall grant to the Holders the same rights granted to such other Person
(and shall promptly enter into one or more amendments to this Agreement to
effect the foregoing).

     

    Section
4.02.         Holdback
Agreements.  The Company agrees not to, and shall exercise its
best efforts to obtain agreements (in the underwriters’ customary form) from its
directors and executive officers, and shall request that beneficial owners of 5%
or more of the Company’s outstanding voting stock, not to, directly or
indirectly offer, sell, pledge, contract to sell (including any short sale),
grant any option to purchase or otherwise dispose of any equity securities of
the Company or enter into any hedging transaction relating to any equity
securities of the Company during the 60 days beginning on the pricing date of
any underwritten offering effected pursuant to this Agreement, unless the
underwriter managing the offering otherwise agrees to a shorter
period.

     

    
      
         


      

      
        13

        
          

        

      

      
         


      

    


    Section
4.03.         Termination of Registration
Rights.  The
rights granted under this Agreement shall terminate on the earlier of the date
that (i) the Holders no longer beneficially own any Registrable Securities or
(ii) all Registrable Securities are eligible for sale without any volume or
other limitations or restrictions.

     

    Section
4.04.         Amendment and
Modification.  This
Agreement may be amended, modified and supplemented, and any of the provisions
contained herein may be waived, only by a written instrument signed by the
Company and each Holder, provided that the addition of
a permitted assign as a Holder hereunder shall not constitute an amendment or
modification for purposes of this Section 4.04.

     

    Section
4.05.         Assignment; Binding Effect;
Entire Agreement.  The
rights and obligations hereunder may be assigned in whole or in part by any
Holder to a controlled affiliate of such Holder and or to any member, partner or
stockholder of any such Holder (a “Permitted
Transferee”) without the consent of the Company or the other
Holders.  Such assignment shall be effective upon receipt by the
Company of (x) written notice from the Holder certifying that the transferee is
a Permitted Transferee, stating the name and address of the Permitted Transferee
and identifying the amount of Registrable Securities with respect to which the
rights under this Agreement are being transferred, and (y) a written agreement
from the Permitted Transferee to be bound by all of the terms of this
Agreement.  Upon receipt of the documents referenced in (x) and (y)
above, the Permitted Transferee shall thereafter be deemed to be a “Holder” for all purposes of this Agreement.  Except as
set forth above, this Agreement and the rights and obligations hereunder may not
be assigned by any party hereto without the prior written consent of each of the
other parties hereto.  This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns.  This Agreement sets
forth the entire agreement and understanding between the parties as to the
subject matter hereof and merges and supersedes all prior discussions,
agreements and understandings of any and every nature among them with respect to
the subject matter hereof.

     

    Section
4.06.         Severability.  In
the event that any provision of this Agreement or the application of any
provision hereof is declared to be illegal, invalid or otherwise unenforceable
by a court of competent jurisdiction, the remainder of this Agreement shall not
be affected except to the extent necessary to delete such illegal, invalid or
unenforceable provision unless that provision held invalid shall substantially
impair the benefits of the remaining portions of this Agreement.

     

    Section
4.07.         Notices.  All
notices, requests and other communications to any party hereunder shall be in
writing (including fax or similar writing) and shall be given to:

     

    
      If to the
Company:

    

     

    
      Vitacost.com,
Inc.

    

    
      5400
Broken Sound Blvd. N.W., Suite 500

    

    
      Boca
Raton, FL 33487-3521

    

    
      Phone:
(561) 982 4180

    

    
      Fax:
(561) 443-7721

    

     

    
      
         


      

      
        14

        
          

        

      

      
         


      

    


    
      With a
copy (which shall not constitute notice) to:

    

     

    
      Greenberg
Traurig, LLP

    

    
      MetLife
Building

    

    
      200 Park
Avenue

    

    
      New York,
NY 10166

    

    
      Attn:    
 Clifford
E. Neimeth

    

    
      Phone:   (212)
801-9200

    

    
      Fax:       (212)
801-6500

    

    


    
      If to any
of the Holders:

    

     

    
      Great
Hill Partners, LLC

    

    
      One
Liberty Square

    

    
      Boston,
MA 02109

    

    
      Attn:      Michael
A. Kumin

    

    
      Phone:   (617)
790-9435

    

    
      Fax:       (617)
790-9401

    

     

    
      With a
copy (which shall not constitute notice) to:

    

     

    
      Skadden,
Arps, Slate, Meagher & Flom LLP

    

    
      Four
Times Square

    

    
      New York,
NY 10036

    

    
      Attn:      Howard L.
Ellin

    

    
      Richard
J. Grossman

    

    
      Phone:   (212)
735-3000

    

    
      Fax:       (212)
735-2000

    

    


    or such
other address or fax number as such party may hereafter specify for the purpose
of giving such notice to such party.  Each such notice, request or
other communication shall be deemed to have been received (a) if given by fax,
when such fax is transmitted to the fax number specified pursuant to this
Section 4.07 and appropriate confirmation is received, or (b) if given by any
other means, when delivered in person or by overnight courier or two business
days after being sent by registered or certified mail (postage prepaid, return
receipt requested).

     

    Section
4.08.         Governing
Law.  This
Agreement and (unless otherwise provided) all amendments hereof and waivers and
consents hereunder shall be governed by the laws of the State of New York,
notwithstanding any conflict of law provision to the contrary.

     

    Section
4.09.         Headings.  The
headings in this Agreement are for convenience of reference only and shall not
constitute a part of this Agreement, nor shall they affect their meaning,
construction or effect.

     

    
      
         


      

      
        15

        
          

        

      

      
         


      

    


    Section
4.10.         Counterparts.  This
Agreement may be executed via facsimile or electronic transmission and in any
number of counterparts, each of which shall be deemed to be an original
instrument and all of which together shall constitute one and the same
instrument.

     

    Section
4.11.         Further
Assurances.  Each
party shall cooperate and take such action as may be reasonably requested by
another party in order to carry out the provisions and purposes of this
Agreement and the transactions contemplated hereby.

     

    Section
4.12.         Remedies.  In
the event of a breach or a threatened breach by any party to this Agreement of
its obligations under this Agreement, any party injured or to be injured by such
breach will be entitled to specific performance, without posting a bond, of its
rights under this Agreement or to injunctive relief, in addition to being
entitled to exercise all rights provided in this Agreement and granted by law,
it being agreed by the parties that the remedy at law, including monetary
damages, for breach of any such provision will be inadequate compensation for
any loss and that any defense or objection in any action for specific
performance or injunctive relief that a remedy at law would be adequate is
waived.

     

    Section
4.13.         Pronouns.  Whenever
the context may require, any pronouns used herein shall be deemed also to
include the corresponding neuter, masculine or feminine forms.

     

    Section
4.14.         Interpretation.  In
this Agreement, reference to any law, rule, regulation or act means such law,
rule, regulation or act as amended, modified, codified, replaced or reenacted,
and all rules and regulations promulgated thereunder.

     

    Section
4.15.         Jurisdiction; Service of
Process; Waiver of Jury Trial.

     

    (a)           To
the fullest extent permitted by law, each of the parties hereto unconditionally
and irrevocably agrees to submit to the exclusive jurisdiction of the state and
federal courts located in New York, New York for any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement and hereby irrevocably waives, to the fullest
extent permitted by applicable law, and agrees not to assert any objection,
whether as a defense or otherwise, that such party may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any such court
or that any such suit, action or proceeding that is brought in any such court
has been brought in an inconvenient forum or that such suit, action or
proceeding may not be brought or is not maintainable in such courts or that the
venue thereof may not be appropriate, or that this Agreement may not be enforced
in or by such courts.  To the fullest extent permitted by law, each
party hereto agrees that a final non-appealable judgment in any such suit,
action or proceeding shall be conclusive and may be enforced in any other
jurisdiction in which a party may be found or may have assets by suit on the
judgment or in any other manner provided by applicable law, and agrees to the
fullest extent permitted by law to consent to the enforcement of any such
judgment and not to oppose such enforcement or to seek review on the merits of
any such judgment in any such jurisdiction.

     

    (b)           To
the fullest extent permitted by law, each of the parties hereto hereby
irrevocably consents to the service of process outside the territorial
jurisdiction of such courts in any suit, action or proceeding by giving copies
thereof by overnight courier to the address of such party specified in Section
4.07 and such service of process shall be deemed effective service of process on
such party; provided,
however, that the
foregoing shall not limit the right of any party to effect service of process on
the other party by any other legally available method.

     

    
      
         


      

      
        16

        
          

        

      

      
         


      

    


    (c)           TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO
THIS AGREEMENT.

     

    [signature
page follows]


    
      
         


      

      
        17

        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.

     

    
       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            	
                                                    VITACOST.COM,
      INC.

                                                  
	 
	 	 
	
                                                    By:

                                                  	      
                                                          
                                                      /s/
      Jeffrey J. Horowitz

                                                    

                                                  
	Name:	
                                                    Jeffrey
      J. Horowitz

                                                  
	Title:	
                                                    Chief
      Executive Officer

                                                  
	 	 
	 
      	 
      
	
                                                    GREAT
      HILL INVESTORS, LLC

                                                  
	 
	 	 
	
                                                    By:

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

                                                  
	Title:	
                                                    Managing
      Partner

                                                  
	 	 
	 
      	 
      
	
                                                    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:	
                                                    Managing
      Partner

                                                  
	 	 
	 	 
	      
                                                    GREAT
      HILL PARTNERS GP III, L.P.

                                                  
	 	 
	      
                                                    By:

                                                  	GHP
      III, LLC, its General Partner
	 	 
	 	 
	      
                                                    By:

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

                                                  
	Title:	      
                                                    Managing
      Partner

                                                  
	 
      	 
      
	 	 
	GHP
      III, LLC
	 
	 	 
	
                                                    By: 

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

                                                  
	Title:
      	
                                                    Managing
      Partner

                                                  


                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    
       

    

    


    [Signature
Pages to Registration Rights Agreement]

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                             

                                            
                                              	
                                                            
                                                        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:	
                                                      Managing
      Partner

                                                    
	 	 
	 	 
	      
                                                            
                                                        GREAT
      HILL PARTNERS GP IV, L.P.

                                                      

                                                    
	 	 
	      
                                                      By:

                                                    	      
                                                      GHP
      IV, LLC, its General Partner

                                                    
	 	 
	 	 
	      
                                                      By:

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

                                                    
	Title:	      
                                                      Managing
      Partner

                                                    
	 
      	 
      
	 	 
	      
                                                      GHP
      IV, LLC

                                                    
	 
	 	 
	
                                                      By: 

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

                                                    
	Title:
      	
                                                      Managing
      Partner

                                                    


                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

      
 

    

    [Signature
Pages to Registration Rights Agreement]

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    Exhibit
A

    


    PLAN
OF DISTRIBUTION

     

    We are
registering the shares of common stock issued to the selling stockholders to
permit the resale of these shares of common stock by the selling stockholders
from time to time after the date of this prospectus.  We will not
receive any of the proceeds from the sale by the selling stockholders of the
shares of common stock.  We will bear all fees and expenses incident
to our obligation to register the shares of common stock.

     

    The
selling stockholders may sell all or a portion of the shares of common stock
held by them and offered hereby from time to time directly or through one or
more underwriters, broker-dealers or agents.  If the shares of common
stock are sold through underwriters or broker-dealers, the selling stockholders
will be responsible for underwriting discounts or commissions or agent’s
commissions.  The shares of common stock may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of the
sale, at varying prices determined at the time of sale or at negotiated
prices.  These sales may be effected in transactions, which may
involve crosses or block transactions, pursuant to one or more of the following
methods:

     

    
      	
               
      

            	
              ·

            	
              on
      any national securities exchange or quotation service on which the
      securities may be listed or quoted at the time of
  sale;

            


    

     

    
      	
               
      

            	
              ·

            	
              in
      the over-the-counter market;

            


    

     

    
      	
               
      

            	
              ·

            	
              in
      transactions otherwise than on these exchanges or systems or in the
      over-the-counter market;

            


    

     

    
      	
               
      

            	
              ·

            	
              ordinary
      brokerage transactions and transactions in which the broker-dealer
      solicits purchasers;

            


    

     

    
      	
               
      

            	
              ·

            	
              block
      trades in which the broker-dealer will attempt to sell the shares as agent
      but may position and resell a portion of the block as principal to
      facilitate the transaction;

            


    

     

    
      	
               
      

            	
              ·

            	
              purchases
      by a broker-dealer as principal and resale by the broker-dealer for its
      account;

            


    

     

    
      	
               
      

            	
              ·

            	
              an
      exchange distribution in accordance with the rules of the applicable
      exchange;

            


    

     

    
      	
               
      

            	
              ·

            	
              privately
      negotiated transactions;

            


    

     

    
      	
               
      

            	
              ·

            	
              broker-dealers
      may agree with a selling securityholder to sell a specified number of such
      shares at a stipulated price per
share;

            


    

     

    
      	
               
      

            	
              ·

            	
              a
      combination of any such methods of sale;
and

            


    

     

    
      	
               
      

            	
              ·

            	
              any
      other method permitted pursuant to applicable
  law.

            


    


    
      
         


      

      
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    The
selling stockholders may also sell shares of common stock under Rule 144
promulgated under the Securities Act of 1933, as amended, if available, rather
than under this prospectus.  In addition, the selling stockholders may
transfer the shares of common stock by other means not described in this
prospectus.  If the selling stockholders effect such transactions by
selling shares of common stock to or through underwriters, broker-dealers or
agents, such underwriters, broker-dealers or agents may receive commissions in
the form of discounts, concessions or commissions from the selling stockholders
or commissions from purchasers of the shares of common stock for whom they may
act as agent or to whom they may sell as principal (which discounts, concessions
or commissions as to particular underwriters, broker-dealers or agents may be in
excess of those customary in the types of transactions involved).

     

    The
selling stockholders may pledge or grant a security interest in some or all of
the shares of common stock owned by them and, if they default in the performance
of their secured obligations, the pledgees or secured parties may offer and sell
the shares of common stock from time to time pursuant to this prospectus or any
amendment to this prospectus under Rule 424(b)(3) or other applicable provision
of the Securities Act amending, if necessary, the list of selling stockholders
to include the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus.  The selling stockholders also may
transfer and donate the shares of common stock in other circumstances in which
case the transferees, donees, pledgees or other successors in interest will be
the selling beneficial owners for purposes of this prospectus.

     

    To the
extent required by the Securities Act and the rules and regulations thereunder,
the selling stockholders and any broker-dealer participating in the distribution
of the shares of common stock may be deemed to be “underwriters” within the
meaning of the Securities Act, and any commission paid, or any discounts or
concessions allowed to, any such broker-dealer may be deemed to be underwriting
commissions or discounts under the Securities Act.  At the time a
particular offering of the shares of common stock is made, a prospectus
supplement, if required, will be distributed, which will set forth the aggregate
amount of shares of common stock being offered and the terms of the offering,
including the name or names of any broker-dealers or agents, any discounts,
commissions and other terms constituting compensation from the selling
stockholders and any discounts, commissions or concessions allowed or re-allowed
or paid to broker-dealers.

     

    Under the
securities laws of some states, the shares of common stock may be sold in such
states only through registered or licensed brokers or dealers.  In
addition, in some states the shares of common stock may not be sold unless such
shares have been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied
with.

     

    There can
be no assurance that any selling stockholder will sell any or all of the shares
of common stock registered pursuant to the registration statement, of which this
prospectus forms a part.


    
      
         


      

      
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    The
selling stockholders and any other person participating in such distribution
will be subject to applicable provisions of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, including, without
limitation, to the extent applicable, Regulation M of the Exchange Act, which
may limit the timing of purchases and sales of any of the shares of common stock
by the selling stockholders and any other participating person.  To
the extent applicable, Regulation M may also restrict the ability of any person
engaged in the distribution of the shares of common stock to engage in
market-making activities with respect to the shares of common
stock.  All of the foregoing may affect the marketability of the
shares of common stock and the ability of any person or entity to engage in
market-making activities with respect to the shares of common
stock.

     

    We will
pay all expenses of the registration of the shares of common stock pursuant to
the registration rights agreement, estimated to be $[●] in total, including,
without limitation, Securities and Exchange Commission filing fees and expenses
of compliance with state securities or “blue sky” laws; provided, however, a
selling stockholder will pay all underwriting discounts and selling commissions,
if any.  We will indemnify the selling stockholders against
liabilities, including some liabilities under the Securities Act in accordance
with the registration rights agreements or the selling stockholders will be
entitled to contribution.  We may be indemnified by the selling
stockholders against civil liabilities, including liabilities under the
Securities Act that may arise from any written information furnished to us by
the selling stockholder specifically for use in this prospectus, in accordance
with the related registration rights agreements or we may be entitled to
contribution.

     

    Once sold
under the registration statement, of which this prospectus forms a part, the
shares of common stock will be freely tradable in the hands of persons other
than our affiliates.


    
      
         


      

      
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