Unassociated Document


    


    Exhibit
10.37

     

    EXECUTION
VERSION

     

    STOCKHOLDER
AGREEMENT

     

    STOCKHOLDER
AGREEMENT, dated as of October 8, 2010 (this "Agreement"), by and between
Vitacost.com, Inc., a Delaware corporation (together with any successor entity
thereto, the "Company"),
on the one hand, and Great Hill Investors, LLC, a Massachusetts limited
liability company, Great Hill Equity Partners III, L.P., a Delaware limited
partnership, and Great Hill Equity Partners IV, L.P., a Delaware limited
partnership (collectively, "Great Hill"), on the other
hand. The Company and Great Hill are sometimes referred to herein as a "Party" and collectively as the
"Parties."

     

    WITNESSETH:

     

    WHEREAS,
Great Hill beneficially owns in the aggregate 5,419,697 shares of the common
stock, par value $0.00001 per share, of the Company (the "Common Stock");

     

    WHEREAS,
Great Hill conducted a solicitation of written consents from the Company's
stockholders (the "Consent
Solicitation") pursuant to which the Company's stockholders (i) amended
the Company's Amended and Restated Bylaws (the "Bylaws") to allow stockholders
to fill vacancies on the Company's Board of Directors (the "Board"), (ii) removed, without
cause, Eran Ezra, Stewart L. Gitler, David N. Ilfeld, M.D. and Lawrence a Pabst,
M.D. as directors of the Company, and (iii) elected Christopher S. Gaffney, Mark
A. Jung, Michael A. Kumin and Jeffrey M. Stibel to the Board;

     

    WHEREAS,
in connection with the Consent Solicitation, Great Hill disclosed to the
Company's stockholders that if Great Hill was successful in the Consent
Solicitation, it would make certain commitments to the Company and its
stockholders, and abide by certain restrictions, and, in furtherance thereof,
Great Hill now desires to agree with the Company as to such commitments and
restrictions and to certain additional restrictions as provided herein, in each
case, with respect to its ownership of Common Stock and its relationship with
the Company; and

     

    WHEREAS,
concurrently with the execution of this Agreement, the Parties are entering in a
Registration Rights Agreement with respect to the demand and incidental
registration of the public offer and sale under the Securities Act (as defined
below) of the shares of Common Stock now owned or which may hereafter be
acquired by Great Hill ("Registration Rights
Agreement"), subject to the terms and conditions thereof.

     

    NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual promises
and covenants set forth herein, the Parties hereto, intending to be legally
bound, agree as follows:

     

    ARTICLE
I

     

    DEFINITIONS

     

    Section
1.1        Definitions. The
following terms, as used in this Agreement, have the following
meanings:

     

    "Agreement" has the meaning set
forth in the preamble.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    "Affiliate" has the meaning set
forth in Rule 12b-2 under the Exchange Act

     

    "beneficial owner" or "beneficially own" and words of
similar import have the meaning given such term in Rule 13d-3 under the Exchange
Act.

     

    "Board" has the meaning set
forth in the recitals.

     

    "Business Day" means any day
that is not a Saturday, Sunday or a day on which banks located in New York, New
York are authorized or obligated by applicable law or executive order to close
or are otherwise generally closed.

     

    "Bylaws" has the meaning set
forth in the recitals.

     

    "Common Stock" has the meaning
set forth in the recitals.

     

    "Company" has the meaning set
forth in the preamble.

     

    "Control" (including the terms
"Controlling", "Controlled", "Controlled by", and "under common control with") or
words of similar import have the meaning given such term in Rule 12b-2 under the
Exchange Act.

     

    "Controlled Affiliate" means,
with respect to any Person, any corporation, partnership, limited liability
company, association, trust, or any other entity or organization (i) of which
more than 50% of the total voting equity interests (including partnership and
joint venture interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, general partners, managers or
trustees thereof, is at the time owned or controlled, directly or indirectly, by
such Person, or (ii) with respect to which such Person owns or controls,
directly or indirectly, the election of a majority of the board of directors,
general partners, managers, trustees or similar governing body.

     

    "Electronic Delivery" has the
meaning set forth in Section 7.13.

     

    "Excess Shares" has the meaning
set forth in Section 3.1(a).

     

    "Exchange Act" means the
Securities Exchange Act of 1934, as amended.

     

    "Great Hill" has the meaning
set forth in the preamble.

     

    "Great Hill Designees" and
"Great Hill Designee"
have the meanings set forth in Section 5.1(a).

     

    "Majority Independent Board"
means the Board, as composed of a majority of directors who are Non-Great Hill
Directors and who are "independent" of the Company as contemplated by applicable
SEC and stock exchange rules and regulations.

     

    "Non-Great Hill Directors" and
"Non-Great Hill
Director" means a natural person or persons who are not directors,
managers, officers, members, partners (other than limited partners), principals,
employees or agents of Great Hill and/or any of its Controlled
Affiliates.

     

    
      
        
        

      

      
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    "Non-Affiliate Holders" means
all holders of the then-outstanding shares of Common Stock, other than Great
Hill and/or any of its Controlled Affiliates and any other holder of Common
Stock that is an Affiliate of the Company, as determined in good faith by the
Company.

     

    "Party" and "Parties" have the meanings set
forth in the preamble.

     

    "Person" means an individual or
a corporation, partnership, limited liability company, association, trust, or
any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.

     

    "Private Sale" means any
intended privately-negotiated sale, transfer, pledge or other disposition by
Great Hill or any of its Controlled Affiliates, directly or indirectly, in one
transaction or a series of related transactions, of shares of Common Stock that
does not occur in an undisclosed principal transaction effected by one or more
broker-dealers on or through a nationally recognized securities exchange or
automated inter-dealer quotation system of a registered national securities
association and irrespective of whether pursuant to any "demand registration"
rights exercised by Great Hill under the Registration Rights
Agreement.

     

    "Proportional Voting
Requirement" has the meaning set forth in Section 3.1(a).

     

    "Registration Rights Agreement"
has the meaning set forth in the recitals.

     

    "SEC" means the Securities and
Exchange Commission.

     

    "Securities Act" means the
Securities Act of 1933, as amended.

     

    "Special Committee" means a
duly established committee of the Board composed solely of directors who are
Non-Great Hill Directors and who are "independent" of the Company as
contemplated by applicable SEC and stock exchange rules and
regulations.

     

    "Subject Shares" has the
meaning set forth in Section 3.1(a).

     

    "Tender Offer" means a bona
fide public offer conducted in accordance with the provisions Regulation 14D and
Regulation 14E under the Exchange Act by any Person or "group" (as such term is
used in Section 13(d) and Section 14(d) of the Exchange Act) to purchase or
exchange for cash or other consideration any shares of Common Stock, which offer
has not been affirmatively recommended by the Majority Independent Board in the
Company's Solicitation/Recommendation Statement on Schedule 14D-9.

     

    "TO Expiration Date" has the
meaning set forth in Section 3.2(a).

     

    "Voting Standstill Period"
means the period beginning on the date of this Agreement and ending on the
seventh anniversary thereof.

     

    
      
        
        

      

      
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    ARTICLE
II

     

    REPRESENTATIONS OF THE
PARTIES

     

    Section
2.1        Representations of the
Company. The
Company hereby represents to Great Hill that: (a) this Agreement has been duly
authorized, executed and delivered by the Company and is a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws generally affecting the rights of creditors and subject to general
equity principles; (b) the execution of this Agreement, the consummation of each
of the actions contemplated hereby, and the fulfillment of the terms hereof, in
each case in accordance with the terms hereof, will not (i) conflict with,
result in a breach or violation of, constitute a default (or an event that with
notice or lapse of time or both could become a default) under or pursuant to,
result in the loss of a material benefit or give any right of termination,
amendment, acceleration or cancellation under, or result in the imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to any law, any order of any court or other
agency of government, the Company's certificate of incorporation, the Bylaws or
the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company is a party or bound or to which its property or
assets is subject, or (ii) trigger any "change of control" provisions in any
agreement to which the Company is a party; and (c) no consent, approval,
authorization, license or clearance of, or filing or registration with, or
notification to, any court, legislative, executive or regulatory authority or
agency is required in order to permit the Company to perform its obligations
under this Agreement, except for such consents, approvals, authorizations,
licenses, clearances, filings, registrations or notifications as have already
been obtained or made.

     

    Section
2.2        Representations of Great
Hill. Great
Hill represents and warrants to the Company
that: (a) this Agreement has been duly authorized, executed and delivered by
Great Hill and is a valid and binding obligation of Great Hill, enforceable
against Great Hill in accordance with its terms, except as enforcement thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws generally affecting the rights of
creditors and subject to general equity principles; (b) the execution of this
Agreement, the consummation of each of the actions contemplated hereby, and the
fulfillment of the terms hereof, in each case in accordance with the terms
hereof, will not conflict with, result in a breach or violation of, or
constitute a default (or an event that with notice or lapse of time or both
could become a default) under or pursuant to any law, any order of any court or
other agency of government, Great Hill's certificate of formation, certificate
of partnership, operating or limited liability company agreement, or limited
partnership agreement, as applicable, or the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which Great Hill is
a party or bound or to which its property or assets is subject; and (c) no
consent, approval, authorization, license or clearance of, or filing or
registration with, or notification to, any court, legislative, executive or
regulatory authority or agency is required in order to permit Great Hill to
perform its obligations under this Agreement, except for such consents,
approvals, authorizations, licenses, clearances, filings, registrations or
notifications as have already been obtained or made.

     

    
      
        
        

      

      
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    ARTICLE
III

     

    VOTING AND TENDER
OBLIGATION

     

    Section
3.1        Voting by Great
Hill.

     

    (a)       Subject
to Section 3.1(b), Section 3.1(c) and Section 3.3, during the Voting Standstill
Period if, as of the record date for determining the stockholders of the Company
entitled to vote at any annual or special meeting of stockholders of the Company
(however noticed or called) or for determining the stockholders of the Company
entitled to consent to any corporate action by written consent, Great Hill
and/or any of its Controlled Affiliates beneficially owns shares of Common Stock
(the "Subject Shares"),
representing in the aggregate more than 30% of the then-outstanding shares of
Common Stock (such number of Subject Shares as of such record date in excess of
30% of the then-outstanding shares of Common Stock being referred to as the
"Excess Shares"), then
at each such meeting or in each such action by written consent Great Hill shall
vote or furnish a written consent in respect of the Excess Shares, or cause the
Excess Shares to be voted or consented, in each case, in such manner that is in
direct proportion to the manner in which all Non-Affiliate Holders vote or
consent (including, for this purpose, any abstentions and "withhold" votes) in
respect of each matter, resolution, action or proposal that is submitted to the
stockholders of the Company (such manner of voting the Excess Shares being
referred to as the "Proportional Voting
Requirement"). With respect to any meeting of stockholders of the Company
(however noticed or called) or any action by written consent of the stockholders
of the Company, the number of Excess Shares will be determined by the Company
promptly following the record date established for determining the stockholders
of the Company entitled to vote at such meeting or entitled to consent to any
corporate action by written consent, respectively. From time to time before the
scheduled date for any such meeting, and from time to time during the pendency
of any such action by written consent, the Company shall inform Great Hill of
the voting tabulations (including, for this purpose, all votes "for" or
"against" and all "abstentions" and "withhold" votes by the Non-Affiliate
Holders) for such meeting or action by written consent (it being understood and
agreed by the Parties that the Company shall request the proxy solicitation firm
engaged by it, if any, in connection with such meeting or action by written
consent to provide such tabulations directly to Great Hill from time to
time) for the purpose of facilitating Great Hill's agreement to vote or consent
the Excess Shares in accordance with the requirements of this Agreement; provided, however, that the failure of
the Company to obtain or Great Hill to receive voting tabulations on a daily
basis pursuant to this Section 3.1(a) shall not relieve Great Hill of its
obligation to vote or consent the Excess Shares as provided in this Section
3.1(a). During the Voting Standstill Period, Great Hill shall not, and shall not
permit any of its Controlled Affiliates to, take any action (or omit to take any
action), or enter into any transaction, contract, agreement, arrangement, plan,
commitment or understanding with any Person or "group" (as such term is
used in Section 13(d) and Section 14(d) of the Exchange Act), to vote, consent
to, give instructions with respect to, or grant a proxy or proxies, in any such
case in any manner inconsistent with provisions of this Section 3.1(a) or of
Section 3.1(c).

     

    
      
        
           


        

        
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    (b)       Notwithstanding
anything to the contrary in Section 3.1(a), the Proportional Voting Requirement
shall not apply to Great Hill, and Great Hill shall be permitted to vote or
consent all shares of Common Stock that it beneficially owns, in connection with
any public "solicitation" (as such term is used in the proxy rules of the SEC)
of proxies or consents in opposition to, or in favor of the removal of, any of
the Company's directors or nominees for director by any Person or "group" (as
such term is used in Section 13(d) and Section 14(d) of the Exchange Act) to the
extent that such solicitation is commenced and conducted by a Person or "group"
other than Great Hill and/or any of its Controlled Affiliates.

     

    (c)       During
the Voting Standstill Period, to the fullest extent permitted by law, Great Hill
shall take and cause any and all lawful action to be taken, including, without
limitation, voting or consenting, or causing the voting or consenting, of the
Subject Shares so that the Board is composed of a majority of Non-Great Hill
Directors.

     

    Section
3.2        Tender
Offer.

     

    (a)       In
connection with any Tender Offer, Great Hill shall not enter into any tender
commitment, tender and voting support or other similar contract, arrangement,
agreement or understanding with any Person in
respect of the Excess Shares and, subject to Great Hill's receipt of the
requisite information to determine the amount of Excess Shares to be tendered
(or not tendered) pursuant to this Section 3.2, shall cause the Excess Shares to
be tendered (or not tendered) immediately prior to the scheduled expiration date
and time of any Tender Offer, taking into account any extension thereof as
announced by any Person or "group" (as such terms is used in Section 13(d) and
Section 14(d) of the Exchange Act) making such Tender Offer (the "TO Expiration Date"), in such
manner that is in direct proportion to the manner in which all Non-Affiliate
Holders tender (or
do not tender) their shares of Common Stock, it being understood and agreed that
in causing the Excess Shares to be tendered (or not tendered), Great Hill shall
be entitled to rely on the most current information that it has received
from the Company in accordance with its obligations in Section 3.2(b) as of the
close of business on the Business Day preceding the TO Expiration
Date.

     

    (b)       From
and after the tenth Business Day following the "commencement" (as such term is
used in Rule 14d-2 under the Exchange Act) of any Tender Offer, during the
pendency of such Tender Offer the Company shall keep Great Hill informed of the
status of any Tender Offer (including the number and percentage of
then-outstanding shares of Common Stock theretofore validly tendered, physically
and by means of guaranteed delivery, and withdrawn, if any) for the purpose of
allowing Great Hill to tender (or not tender) the Excess Shares in accordance
with the requirements of this Agreement as promptly as practicable; provided, however, that the failure of
the Company to provide Great Hill with tender and tender withdrawal updates on a
daily basis shall not relieve Great Hill of its obligation to tender the Excess
Shares as provided in this Section 3.2.

    


    
      
        
           


        

        
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    Section
3.3        Termination of Voting
Standstill Period.
Notwithstanding anything to the contrary in this Agreement, the Voting
Standstill Period shall immediately be suspended in accordance with the last
sentence of this Section 3.3 or terminated, as the case may be, and during such
suspension period, or from and after such termination, respectively, there shall
be no restriction on Great Hill's ability to vote or furnish a written consent
in respect of any shares of Common Stock that it beneficially owns, following
(a) any Person or "group" (as such term is used in Section 13(d) and Section
14(d) of the Exchange Act) other than Great Hill or any of its Controlled
Affiliates becoming the beneficial owner, directly or indirectly, of 15% or more
of the outstanding shares of Common Stock at any time with the prior approval of
the Majority Independent Board; (b) the public
announcement by the Company that it has entered into a definitive agreement with
the prior approval of the Majority Independent Board, providing for, in one
transaction or a series of related transactions, (i) a merger, consolidation,
recapitalization, acquisition, share issuance, restructuring or other business
combination involving the Company or any of its subsidiaries, (ii) a
recapitalization, restructuring, reorganization, liquidation, dissolution or
other extraordinary transaction with respect to the Company or any of its
subsidiaries, or (iii) the sale, assignment, conveyance, transfer, lease or
other disposition of all or substantially all of the assets or properties
(including the capital stock of subsidiaries) of the Company, other than, in
each case described in clauses (i) through (iii) above, in connection with an
internal restructuring transaction involving only the Company, one or more of
its subsidiaries and/or any holding company formed for the purpose of such
transaction wholly owned by Persons who were stockholders of the Company
immediately prior to such transaction; or (c) any material breach of this
Agreement by the Company as determined by a court of competent jurisdiction (as
contemplated by Section 7.12). In the event that any of the events or
transactions identified in clauses (a) or (b) are subsequently withdrawn,
terminated or cease to exist, the Voting Standstill Period shall be reinstated
and the terms of this Agreement, including the Proportional Voting Requirement,
will again be applicable to Great Hill.

     

    ARTICLE
IV

     

    AFFILIATE
TRANSACTIONS

     

    Section
4.1        Restrictions on Affiliate
Transactions. For so
long as Great Hill and/or any of its Controlled Affiliates beneficially owns any
shares of Common Stock, the Company shall not, and Great Hill shall not, and
Great Hill shall not permit any of its Controlled Affiliates to, cause the
Company to, enter into any transaction, contract, arrangement, plan, commitment,
agreement or understanding between the Company and Great Hill and/or any of its
Controlled Affiliates, unless such transaction, contract, arrangement, plan,
commitment, agreement or understanding has been approved in advance by the
Majority Independent Board.

     

    ARTICLE
V

     

    BOARD REPRESENTATION AND
RELATED MATTERS

     

    Section
5.1        Board
Representation.

     

    (a)       During
the Voting Standstill Period and for so long as Great Hill and/or any of its
Controlled Affiliates collectively beneficially own at least 15% of the
outstanding Common Stock (as adjusted for any stock dividend, stock split,
recapitalization or similar event in respect of the Common Stock), Great Hill
shall have the right to nominate as directors of the Company two natural persons
as the Nominating/Corporate Governance Committee of the Board (or any successor
committee serving such function) reasonable determines to be acceptable in
accordance with the Charter of the Nominating/Corporate Governance Committee and
the Company's director qualification criteria applicable to all directors of the
Company (the "Great Hill
Designees," and each, a "Great Hill Designee"). In
furtherance of the foregoing, during the Voting Standstill Period and for so
long as Great Hill and/or its Controlled Affiliates collectively beneficially
own at least 15% of the outstanding Common Stock (as adjusted for any stock
dividend, stock split, recapitalization or similar event in respect of the
Common Stock), to the fullest extent permitted by law, the Company hereby agrees
to (i) include the Great Hill Designees as nominees to the Board on each slate
of nominees for election to the Board that is proposed by the Majority
Independent Board, (ii) recommend the election of the Great Hill Designees to
the stockholders of the Company and (iii) without limiting the foregoing,
support the Great Hill Designees for election to the Board in a manner
no less rigorous and favorable than the manner in which the Company
supports its other nominees for election to the Board in the aggregate. The
initial two Great Hill Designees are Christopher S. Gaffney and Michael A.
Kumin. With respect to any Great Hill Designees other than Christopher S.
Gaffney and Michael A. Kumin, in advance of any consideration of such Great Hill
Designees by the Nominating/Corporate Governance Committee of the Board, Great
Hill will provide the Company with completed directors' and officers'
questionnaires in the form provided by the Company, which form shall be the same
form applicable to all directors of the Company.

     

    
      
        
        

      

      
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    (b)      
In the event that any Great Hill Designee serving as a director shall die,
resign, be disqualified or be removed, so long as Great Hill is entitled to
designate a Great Hill Designee pursuant to Section 5.1(a), the resulting
vacancy on the Board shall be filled by a natural person nominated by Great Hill
and reasonably determined by the Nominating/Corporate Governance Committee of
the Board (or any successor committee serving such function) to be acceptable in
accordance with the Nominating/Corporate Governance Committee Charter and the
Company's director qualifications criteria applicable to all directors of the
Company, subject to, in the case of any natural person other than Christopher S.
Gaffney and Michael A. Kumin, Great Hill providing the Company with a completed
directors' and officers' questionnaire in the form provided by the Company,
which form shall be the same form applicable to all directors of the
Company.

     

    (c)       The
Parties acknowledge and agree that, notwithstanding anything to the contrary in
this Agreement, at no time after either (i) the 30th day following the
suspension of the Voting Standstill Period or the termination of the this
Agreement, or (ii) Great Hill and/or its Controlled Affiliates collectively
cease to beneficially own at least 15% of the outstanding Common Stock (as
adjusted for any stock dividend, stock split, recapitalization or similar event
in respect of the Common Stock), shall the Company have any obligation to (x)
nominate any Great Hill Designee for election or re-election to the Board by the
stockholders, or (y) fill any vacancy created by the death, resignation,
disqualification or removal of any one or more of the Great Hill Designees with
a successor Great Hill Designee.

     

    Section
5.2        No Interference with Board
Rights. The
Company shall use its reasonable best efforts not to, directly or indirectly,
propose or take any action to encourage any modification to the composition of
the Board that, in the Company's reasonable judgment, would likely result in the
elimination or significant diminishment of the rights of Great Hill specified in
Section 5.1; provided
that the foregoing will in no way limit the Company's right to increase the
number of directors on the Board.

    


    
      
        
           


        

        
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    ARTICLE
VI

     

    SHARE
TRANSFER

     

    Section
6.1        Restriction on
Transfer. Great
Hill shall provide to the Company written advance notice at least three Business
Days prior to effecting or consummating a Private Sale to (a) any Person
pursuant to which such Person and/or any of such Person's Controlled Affiliates
would become the beneficial owner of 20% or more of the outstanding Common Stock
(as adjusted for any stock dividend, stock split, recapitalization or similar
event in respect of the Common Stock), or (b) any Person who has publicly
announced (including, without limitation, by means of any disclosed reservation
of the right to take in the future any action of the types enumerated in clauses
(a) through (j) of Item 4 of Schedule 13D under the Exchange Act) an intention
to (i) influence or seek control of the Company or the Board, or (ii) conduct a
"solicitation" (as such term is used in the proxy rules of the SEC) to (x)
remove and/or elect directors of the Company (including, for this purpose, any
nomination sought to be effected in accordance with Rule 14a-11 under the
Exchange Act), (y) amend or modify the Company's certificate of incorporation or
Bylaws (as the same may be amended), or (z) submit for inclusion in any Company
proxy materials any stockholder proposal relating to director nominations or any
other business relating to control or influencing control of the Company or the
Board pursuant to Rule 14a-8 under the Exchange Act. Such notice shall, to the
extent available, include the identity of the proposed transferee, the proposed
price per share, a summary of the material terms of the intended sale, transfer,
pledge or disposition, and a summary of any other transactions, contracts, agreements, arrangements or
understandings between Great Hill or any of its Controlled Affiliates and the
proposed transferee with respect to the Company or the Common Stock (whether
held by Great Hill or any of its Controlled Affiliates or the proposed
transferee).

     

    ARTICLE
VII

     

    MISCELLANEOUS

     

    Section
7.1        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. NW, Suite 500

    Boca
Raton, FL 33487-3521

    Attn:     Mary
Marbach, General Counsel & Secretary

    Phone: 
(561) 982-4180

    Fax:      (561)
443-7721

    


    
      
        
           


        

        
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    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
Great Hill:

     

    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 the 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 7.1
and appropriate confirmation of receipt 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
7.2        No Waivers;
Amendments.

     

    (a)       No
failure or delay on the part of any Party in exercising any right, power or
privilege hereunder will operate as a waiver thereof, nor will any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.

     

    (b)       Neither
this Agreement nor any term or provision hereof may be amended or waived in any
manner other than by instrument in writing signed, in the case of an amendment,
by each of the Parties, or in the case of a waiver, by the Party against whom
the enforcement of such waiver is sought.

    


    
      
        
           


        

        
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    Section
7.3        Controlled Affiliates of
Great
Hill. Great
Hill agrees that it will use its reasonable best efforts to cause its
Controlled Affiliates, current and
future, to comply with the terms of this Agreement.

     

    Section
7.4        Disposition of the Common
Stock. Except
as set forth Section 6.1 and Section 7.6, (i) nothing in this Agreement shall
prevent Great Hill or any of its Controlled Affiliates from selling,
transferring, pledging or otherwise disposing of any shares of Common Stock that
it owns and (ii) the terms and restrictions of this Agreement shall not apply or
be in any way applicable to any non-Affiliated purchasers of any of the shares
of Common Stock owned (now or in the future) by Great Hill or any of its
Controlled Affiliates.

     

    Section
7.5        Further
Assurances. From
time to time, as and when requested by any Party, the other Party shall execute
and deliver, or cause to be executed and delivered, all such documents and
instruments and shall take, or cause to be taken, all such further or other
lawful actions as such requesting Party may reasonably deem necessary or
desirable to evidence and effectuate the terms and provisions of this
Agreement.

     

    Section
7.6        Successors and
Assigns. All of
the terms and provisions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the Parties and their respective successors
and assigns. Neither of the Parties may assign any of its rights or obligations
hereunder, in whole or in part, by operation of law or otherwise, without the
prior written consent of the other Party; provided, however, that Great Hill may
assign this Agreement to any of its Controlled Affiliates without the Company's
prior consent as long as such Controlled Affiliate has agreed to be bound by the
terms and conditions of this Agreement in a manner reasonably acceptable to the
Company.

     

    Section
7.7        Expenses. Within
two business days following the receipt of appropriate supporting documentation
from Great Hill, the Company shall reimburse Great Hill for its reasonable and
documented out-of-pocket expenses incurred in connection with the Consent
Solicitation, not to exceed $700,000. All other expenses shall be borne by the
Party incurring such expenses.

     

    Section
7.8        Headings. The
headings in this Agreement are for convenience of reference only and will not
control or affect the meaning or construction of any provisions
hereof.

     

    Section
7.9        Severability. The
invalidity or unenforceability of any provision of this Agreement in any
jurisdiction will not affect the validity, legality or enforceability of the
remainder of this Agreement in such jurisdiction or the validity, legality or
enforceability of this Agreement, including any such provision, in any other
jurisdiction, it being intended that all rights and obligations of the Parties
hereunder will be enforceable to the fullest extent permitted by applicable
law.

     

    
      
        
           


        

        
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    Section
7.10      Specific
Performance. The
Parties hereby acknowledge and agree that the failure of any Party to perform
its agreements and covenants hereunder, including its failure to take all
actions as are necessary on its part to consummate the terms and provisions
contemplated hereby, will cause irreparable injury to the other Party, for which
damages, even if available, will not be an adequate remedy. Accordingly, each
Party hereby consents to the issuance of injunctive relief by any court of
competent jurisdiction to compel performance of such Party's obligations, to
prevent breaches of this Agreement by such Party and to the granting by any
court of the remedy of specific performance of such Party's obligations
hereunder, without bond or other security being required, in addition to any
other remedy to which any Party is entitled at law or in equity. Each Party
irrevocably waives any defenses based on adequacy of any other remedy, whether
at law or in equity, that might be asserted as a bar to the remedy of specific
performance of any of the terms or provisions hereof or injunctive relief in any
action brought therefor by any Party.

     

    Section
7.11      Delaware
Law. The
enforceability and validity of this Agreement, the construction of its terms and
the interpretation of the rights and duties of the Parties shall be governed by
the internal procedural and substantive laws of the State of Delaware without
regard to conflicts of laws principles thereof.

     

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

     

    (a)       To
the fullest extent permitted by law, each of the Parties unconditionally and
irrevocably agrees to submit to the exclusive jurisdiction of the state and
federal courts located in Wilmington, Delaware 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 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 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 7.1 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.

     

    (c)       TO
THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES 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.

    


    
      
        
           


        

        
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    Section
7.13      Counterparts; Electronic
Delivery; Effectiveness; Enforceability. This
Agreement and any amendments hereto may be executed in one or more counterparts,
all of which shall constitute one and the same instrument. Any such counterpart,
to the extent delivered by fax or by .pdf, .tif, .gif, .jpeg or similar
attachment to electronic mail (any such delivery, an "Electronic Delivery") shall be
treated in all manner and respects as an original executed counterpart and shall
be considered to have the same binding legal effect as if it were the original
signed version thereof delivered in person. At the request of any Party, each
other Party shall re-execute the original form of this Agreement and deliver
such form to all other Parties. No Party shall raise the use of Electronic
Delivery to deliver a signature or the fact that any signature or agreement or
instrument was transmitted or communicated through the use of Electronic
Delivery as a defense to the formation of a contract, and each such party
forever waives any such defense to the fullest extent permitted by law, except
to the extent such defense relates to lack of authenticity. This Agreement shall
become effective when each Party shall have received counterparts hereof signed
by all of the other Parties. This Agreement is solely for the benefit of the
Parties and is not enforceable by any other Persons.

     

    Section
7.14      Entire Agreement. This
Agreement constitutes the entire agreement and understanding among the Parties
and supersedes any and all prior agreements and understandings, written or oral,
relating to the subject matter hereof.

     

    Section
7.15      Interpretation.

     

    (a)       The
words "hereof," "herein" and "herewith" and words of similar import shall,
unless otherwise stated, be construed to refer to this Agreement as a whole and
not to any particular provision of this Agreement, and article, section,
paragraph, exhibit and schedule references are to the articles, sections,
paragraphs, exhibits and schedules of this Agreement unless otherwise specified.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." All terms defined in this Agreement shall have the defined meanings
contained herein when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The definitions
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such terms. Any agreement, instrument or statute defined or referred
to herein or in any agreement or instrument that is referred to herein means
such agreement, instrument or statute as from time to time amended, qualified or
supplemented, including (in the case of agreements and instruments) by waiver or
consent and (in the case of statutes) by succession of comparable successor
statutes and all attachments thereto and instruments incorporated
therein.

     

    (b)      Each
of the Parties acknowledges that it has been represented by counsel of its
choice throughout all negotiations that have preceded the execution of this
Agreement and that it has executed this Agreement with the advice of such
counsel. Each Party and its counsel cooperated and participated in the drafting
and preparation of this Agreement, and any and all drafts relating thereto
exchanged among the parties shall be deemed the work product of all of the
Parties and may not be construed against any Party by reason of its drafting or
preparation. Accordingly, any rule of law or any legal decision that would
require interpretation of any ambiguities in this Agreement against any Party
that drafted or prepared it is of no application and is hereby expressly waived
by each of the Parties to the fullest extent permitted by law, and any
controversy over interpretations of this Agreement shall be decided without
regard to events of drafting or preparation.

     

    [Execution page
follows.]

    


    
      
        
           


        

        
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    IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be duly
executed as of the date first written above.

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          	
                                                  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 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

                                                


                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    [Signature
Page to Stockholder Agreement]