Form SC 13D/A Vitamin Shoppe, Inc. Filed by: CARLSON CAPITAL L P

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 3)*

 

 

Vitamin Shoppe, Inc.

(Name of Issuer)

Common Stock, $0.01 par value per share

(Title of Class of Securities)

92849E101

(CUSIP Number)

Shahla Ali

Carlson Capital, L.P.

2100 McKinney Avenue

Dallas, TX 75201

(214) 932-9600

With a copy to:

Richard J. Birns, Esq.

Gibson, Dunn & Crutcher LLP

200 Park Avenue

New York, NY 10166-0193

(212) 351-4032

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

January 12, 2016

Date of Event Which Requires Filing of This Statement)

 

 

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

(Page 1 of 18 Pages)

 

 

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

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

 

 

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 2 of 18 Pages

 

1		NAMES OF REPORTING PERSON   Double Black Diamond Offshore Ltd.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ¨        (b)  x
3		SEC USE ONLY
4		SOURCE OF FUNDS   WC
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   1,587,727 Common Shares
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   1,587,727 Common Shares
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   1,587,727 Common Shares
12		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES  ¨
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   5.45%
14		TYPE OF REPORTING PERSON   CO

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 3 of 18 Pages

 

1		NAMES OF REPORTING PERSON   Black Diamond Relative Value Offshore Ltd.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ¨        (b)  x
3		SEC USE ONLY
4		SOURCE OF FUNDS   WC
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   476,995 Common Shares
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   476,995 Common Shares
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   476,995 Common Shares
12		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES  ¨
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   1.64%
14		TYPE OF REPORTING PERSON   CO

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 4 of 18 Pages

 

1		NAMES OF REPORTING PERSON   Black Diamond Relative Value Cayman, L.P.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ¨        (b)  x
3		SEC USE ONLY
4		SOURCE OF FUNDS   WC
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   88,434 Common Shares
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   88,434 Common Shares
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   88,434 Common Shares
12		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES  ¨
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   0.30%
14		TYPE OF REPORTING PERSON   CO

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 5 of 18 Pages

 

1		NAMES OF REPORTING PERSON   Black Diamond Offshore Ltd.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ¨        (b)  x
3		SEC USE ONLY
4		SOURCE OF FUNDS   WC
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   61,105 Common Shares
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   61,105 Common Shares
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   61,105 Common Shares
12		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES  ¨
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   0.21%
14		TYPE OF REPORTING PERSON   CO

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 6 of 18 Pages

 

1		NAMES OF REPORTING PERSON   Black Diamond SRI Offshore Ltd.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP181 (a)  ¨        (b)  x
3		SEC USE ONLY
4		SOURCE OF FUNDS   WC
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   17,600 Common Shares
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   17,600 Common Shares
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   17,600 Common Shares
12		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES  ¨
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   0.06%
14		TYPE OF REPORTING PERSON   CO

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 7 of 18 Pages

 

1		NAMES OF REPORTING PERSON   Black Diamond Arbitrage Offshore Ltd.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ¨        (b)  x
3		SEC USE ONLY
4		SOURCE OF FUNDS   WC
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   12,435 Common Shares
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   12,435 Common Shares
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   12,435 Common Shares
12		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES  ¨
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   0.04%
14		TYPE OF REPORTING PERSON   CO

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 8 of 18 Pages

 

1		NAMES OF REPORTING PERSON   Carlson Capital, L.P.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ¨        (b)  x
3		SEC USE ONLY
4		SOURCE OF FUNDS   AF
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   2,267,066 Common Shares
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   2,267,066 Common Shares
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   2,267,066 Common Shares
12		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES  ¨
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   7.79%
14		TYPE OF REPORTING PERSON   PN; IA

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 9 of 18 Pages

 

1		NAMES OF REPORTING PERSON   Asgard Investment Corp. II
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ¨        (b)  x
3		SEC USE ONLY
4		SOURCE OF FUNDS   AF
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   2,267,066 Common Shares
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   2,267,066 Common Shares
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   2,267,066 Common Shares
12		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES  ¨
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   7.79%
14		TYPE OF REPORTING PERSON   CO

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 10 of 18 Pages

 

1		NAMES OF REPORTING PERSON   Asgard Investment Corp.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ¨        (b)  x
3		SEC USE ONLY
4		SOURCE OF FUNDS   AF
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   2,267,066 Common Shares
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   2,267,066 Common Shares
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   2,267,066 Common Shares
12		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES  ¨
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   7.79%
14		TYPE OF REPORTING PERSON   CO

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 11 of 18 Pages

 

1		NAMES OF REPORTING PERSON   Clint D. Carlson
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ¨        (b)  x
3		SEC USE ONLY
4		SOURCE OF FUNDS   AF
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ¨
6		CITIZENSHIP OR PLACE OF ORGANIZATION   United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   2,267,066 Common Shares
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   2,267,066 Common Shares
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   2,267,066 Common Shares
12		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES  ¨
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   7.79%
14		TYPE OF REPORTING PERSON   IN

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 12 of 18 Pages

 

This Amendment No. 3 to Schedule 13D (this “Amendment No. 3”) relates to the common stock, par value $0.01 per share (the “Common Shares”), of Vitamin Shoppe, Inc., a Delaware corporation (the “Issuer”), and amends the Schedule 13D filed on April 22, 2015, as amended by Amendment No. 1 thereto filed on July 31, 2015 and Amendment No. 2 thereto filed on October 13, 2015 (the “Original Schedule 13D” and, together with this Amendment No. 3, the “Schedule 13D”). Capitalized terms used and not defined in this Amendment No. 3 have the meanings set forth in the Original Schedule 13D.

This Amendment No. 3 is being filed to amend Item 3, Item 4, Item 5 and Item 7 of the Schedule 13D as follows:

 

Item 3.

SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION

Item 3 of the Schedule 13D is amended and restated to read as follows:

The Reporting Persons used approximately $50,662,309 (including brokerage commissions) in the aggregate to purchase the Common Shares reported in this Schedule 13D.

The source of the funds used to acquire the Common Shares reported herein is the working capital of the Funds and the Accounts and margin borrowings described in the following sentence. Such Common Shares are held by the Reporting Persons in commingled margin accounts, which may extend margin credit to the Reporting Persons from time to time, subject to applicable federal margin regulations, stock exchange rules and credit policies. In such instances, the positions held in the margin account are pledged as collateral security for the repayment of debit balances in the account. The margin accounts bear interest at a rate based upon the broker’s call rate from time to time in effect. Because other securities are held in the margin accounts, it is not possible to determine the amounts, if any, of margin used to purchase the Common Shares reported herein.

 

Item 4.

PURPOSE OF TRANSACTION

Item 4 of the Schedule 13D is amended to add the following:

On January 12, 2016, the Issuer entered into an Agreement (the “Agreement”) with the Reporting Persons, pursuant to which, among other things, the Issuer will, (i) no later than February 29, 2016, increase the size of the Board by one (1) director to eleven (11) directors such that there would be one (1) vacancy on the Board and appoint a highly qualified independent director (who shall not be a current or former employee, advisor, consultant or Affiliate (as defined in the Agreement) of the Reporting Persons or any of its Affiliates) to be proposed by the Reporting Persons and agreed to by the Issuer in accordance with certain review obligations of the Issuer (the “Initial New Director”) to fill the newly created vacancy and (ii) no later than March 31, 2016, further increase its Board size by one additional member (to 12 members total) and appoint a highly qualified independent director (the “Subsequent New Director” and, together with the Initial New Director, the “New Directors”). In addition, the Issuer will include the New Directors in its slate of nominees for election to the Board at the 2016 annual meeting of shareholders (the “2016 Annual Meeting”), and use its reasonable best efforts to cause the election of the New Directors to the Board at the 2016 Annual Meeting, including recommending that the Issuer’s stockholders vote in favor of the election of the New Directors along with all other Issuer nominees. At the 2016 Annual Meeting, two (2) of the directors serving on the Board on the date hereof shall not seek re-election and the Board shall take all necessary actions to decrease the size of the Board from twelve (12) members to ten (10) members effective immediately after the 2016 Annual Meeting.

Pursuant to the Agreement, subject to compliance with New York Stock Exchange listing requirements, the Initial New Director will be appointed to the Nomination and Governance Committee of the Board.

Pursuant to the Agreement, the Issuer has agreed to, as soon as reasonably practicable, but in no event later than February 29, 2016, retain an experienced operational consultant for purposes of identifying areas of increased operational efficiency and potential cost-cutting measures.

Pursuant to the Agreement, the Reporting Persons, subject to certain exceptions, have agreed to certain standstill obligations during the Standstill Period, including the obligation to not solicit proxies or consents, and not to acquire more than 12.5% of the Common Shares. “Standstill Period” means the period from the date of the Agreement until 12:01 a.m. on the thirtieth (30th) day prior to the advance notice deadline for making director nominations at the 2017 annual meeting of shareholders.

Until the end of the Standstill Period, the Reporting Persons have generally agreed to vote all of their Common Shares for all directors nominated by the Board for election at the 2016 Annual Meeting, and in favor of auditor ratification and “say-on-pay” proposals, and in accordance with the recommendation of the Board on any other proposals or other business that comes before such meeting provided that such recommendation is unanimous and includes the affirmative vote of the New Directors.

If at any time the Reporting Persons ceases to hold a net long position, as defined in the Agreement, in at least 5% of the outstanding Common Shares, certain of the Issuer’s obligations terminate and the Issuer shall not be obligated to nominate the New Directors for election to the Board.

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 13 of 18 Pages

 

The foregoing description of the Agreement is qualified in its entirety by reference to the full text of the Agreement, which is attached hereto as Exhibit 1 and incorporated herein by reference.

 

Item 5.

INTEREST IN SECURITIES OF THE ISSUER

Items 5(a)-(c) of the Schedule 13D are amended and restated as follows:

(a) and (b)

The Reporting Persons may be deemed to beneficially own in the aggregate 2,267,066 Common Shares. Based upon a total of 29,120,557 Common Shares outstanding as of October 16, 2015, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended September 26, 2015, filed with the Securities and Exchange Commission on November 4, 2015, the Reporting Persons’ shares represent approximately 7.79% of the outstanding Common Shares.

Carlson Capital, Asgard II, Asgard I and Mr. Carlson have the power to vote and direct the disposition of (i) the 1,587,727 Common Shares reported herein as owned by DOF, (ii) the 476,995 Common Shares reported herein as owned by ROF, (iii) the 88,434 Common Shares reported herein as owned by RVC, (iv) the 61,105 Common Shares reported herein as owned by OFF, (v) the 17,600 Common Shares reported herein as owned by SRI, (vi) the 12,435 Common Shares reported herein as owned by AOF and (vii) an additional 22,770 Common Shares held in the Accounts.

(c) Information concerning transactions in the Common Shares effected by the Reporting Persons since Amendment No. 2 is set forth in Appendix A hereto and is incorporated herein by reference.

 

Item 7.

Material to be Filled as Exhibits

 

Exhibit Number		Description of Exhibit
1		Support Agreement, dated January 12, 2016, by and among the Issuer and the Reporting Persons.

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 14 of 18 Pages

 

SIGNATURES

After reasonable inquiry and to the best of his or its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

DATED: January 12, 2016

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 15 of 18 Pages

 

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 16 of 18 Pages

 

Appendix A

TRANSACTIONS IN THE ISSUER’S COMMON SHARES BY THE REPORTING PERSONS SINCE AMENDMENT NO. 2

The following tables set forth all transactions in the Common Shares effected by any of the Reporting Persons since Amendment No. 2, as applicable. All such transactions were effected in the open market through brokers and the price per share is net of commissions.

Black Diamond Arbitrage Offshore Ltd.

 

Type		Qty		Price		Net Amount		Trade Date
Buy		888.00		21.61		24,520.88		11/17/2015
Sell		842.00		28.28		23,806.26		11/17/2015

Double Black Diamond Offshore Ltd.

 

Type		Qty		Price		Net Amount		Trade Date
Buy		4,127.00		30.24		124,821.94		11/5/2015
Buy		1,953.00		30.37		59,329.99		11/5/2015
Buy		1,889.00		30.72		58,031.59		11/5/2015
Buy		10,392.00		30.47		316,820.90		11/6/2015
Buy		5,960.00		30.49		181,802.65		11/6/2015
Buy		36.00		30.40		1,094.68		11/9/2015
Buy		25.00		30.40		760.20		11/9/2015
Buy		11.00		30.40		334.49		11/9/2015
Buy		257.00		30.40		7,814.78		11/9/2015
Buy		1,040.00		30.40		31,626.40		11/9/2015
Buy		42.00		30.50		1,281.39		11/10/2015
Buy		29.00		30.50		884.77		11/10/2015
Buy		13.00		30.50		396.62		11/10/2015
Buy		303.00		30.50		9,244.28		11/10/2015
Buy		3,861.00		30.50		117,793.32		11/10/2015
Buy		987.00		29.52		29,144.92		11/13/2015
Buy		457.00		29.52		13,494.66		11/13/2015
Buy		8,301.00		29.52		245,118.57		11/13/2015
Buy		30,607.00		29.33		898,140.99		11/13/2015
Buy		42,127.00		27.50		1,158,564.11		11/17/2015
Buy		47,134.00		27.61		1,301,539.42		11/17/2015
Sell		46,986.00		28.28		1,328,457.72		11/17/2015
Buy		15,991.00		28.75		460,380.89		11/18/2015
Buy		20,117.00		28.49		573,268.11		11/19/2015

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 17 of 18 Pages

 

Black Diamond Offshore Ltd.

 

Type		Qty		Price		Net Amount		Trade Date
Buy		156.00		30.24		4,718.25		11/5/2015
Buy		113.00		30.37		3,432.82		11/5/2015
Buy		111.00		30.72		3,410.01		11/5/2015
Buy		605.00		30.47		18,444.64		11/6/2015
Buy		226.00		30.49		6,893.86		11/6/2015
Buy		1.00		30.40		30.41		11/9/2015
Buy		9.00		30.40		273.67		11/9/2015
Buy		60.00		30.40		1,824.60		11/9/2015
Buy		1.00		30.50		30.51		11/10/2015
Buy		11.00		30.50		335.60		11/10/2015
Buy		225.00		30.50		6,864.41		11/10/2015
Buy		31.00		29.52		915.39		11/13/2015
Buy		14.00		29.52		413.40		11/13/2015
Buy		323.00		29.52		9,537.80		11/13/2015
Buy		1,781.00		29.33		52,262.20		11/13/2015
Buy		1,596.00		27.50		43,892.72		11/17/2015
Buy		1,688.00		27.61		46,611.76		11/17/2015
Sell		1,716.00		28.28		48,517.29		11/17/2015
Buy		606.00		28.75		17,446.74		11/18/2015
Buy		762.00		28.49		21,714.49		11/19/2015

Black Diamond Relative Value Offshore Ltd.

 

Type		Qty		Price		Net Amount		Trade Date
Buy		2,374.00		30.24		71,802.11		11/5/2015
Buy		3,429.00		30.49		104,597.53		11/6/2015
Buy		24.00		30.40		729.78		11/9/2015
Buy		16.00		30.40		486.52		11/9/2015
Buy		7.00		30.40		212.85		11/9/2015
Buy		141.00		30.40		4,287.49		11/9/2015
Buy		27.00		30.50		823.74		11/10/2015
Buy		19.00		30.50		579.67		11/10/2015
Buy		8.00		30.50		244.07		11/10/2015
Buy		167.00		30.50		5,095.04		11/10/2015
Buy		703.00		29.52		20,758.75		11/13/2015
Buy		329.00		29.52		9,714.98		11/13/2015
Buy		4,574.00		29.52		135,064.73		11/13/2015
Buy		24,232.00		27.50		666,421.19		11/17/2015
Buy		9,198.00		28.75		264,810.42		11/18/2015
Buy		11,572.00		28.49		329,763.81		11/19/2015

---

CUSIP No. 92849E101		SCHEDULE 13D		Page 18 of 18 Pages

 

Black Diamond Relative Value Cayman, L.P.

 

Type		Qty		Price		Net Amount		Trade Date
Buy		454.00		30.24		13,731.32		11/5/2015
Buy		656.00		30.49		20,010.49		11/6/2015
Buy		4.00		30.40		121.63		11/9/2015
Buy		23.00		30.40		699.38		11/9/2015
Buy		7.00		30.40		212.85		11/9/2015
Buy		5.00		30.50		152.55		11/10/2015
Buy		27.00		30.50		823.75		11/10/2015
Buy		8.00		30.50		244.07		11/10/2015
Buy		1,033.00		29.52		30,503.25		11/13/2015
Buy		39.00		29.52		1,151.62		11/13/2015
Buy		4,549.00		27.50		125,104.78		11/17/2015
Buy		84.00		27.50		2,310.14		11/17/2015
Buy		1,759.00		28.75		50,641.61		11/18/2015
Buy		2,213.00		28.49		63,063.20		11/19/2015

WTL

 

Type		Qty		Price		Net Amount		Trade Date
Buy		89.00		$30.24		2,691.82		11/5/2015
Buy		129.00		$30.49		3,935.00		11/6/2015
Buy		5.00		$30.40		152.04		11/9/2015
Buy		1.00		$30.50		30.51		11/10/2015
Buy		5.00		$30.50		152.55		11/10/2015
Buy		29.00		$29.52		856.34		11/13/2015
Buy		16.00		$29.52		472.46		11/13/2015
Buy		164.00		$29.52		4,842.73		11/13/2015
Buy		912.00		$27.50		25,081.55		11/17/2015
Buy		290.00		$27.61		8,007.95		11/17/2015
Sell		456.00		$28.28		12,892.70		11/17/2015
Buy		346.00		$28.75		9,961.34		11/18/2015
Buy		436.00		$28.49		12,424.57		11/19/2015

Exhibit 1

AGREEMENT

This Agreement, dated January 12, 2016 (this “Agreement”), is by and among Vitamin Shoppe, Inc. (the “Company”) and the entities and natural Persons set forth on Schedule A hereto (collectively, “Carlson Capital”).

WHEREAS, the Company and Carlson Capital have engaged in various discussions and communications concerning the Company’s business, financial performance and strategic plans;

WHEREAS, Carlson Capital is deemed to Beneficially Own shares of common stock of the Company, par value $0.01 per share (the “Common Shares”), totaling, in the aggregate 2,267,066 Common Shares, or approximately 7.79% of the outstanding Common Shares as of the date hereof;

WHEREAS, the Company has determined that it is in the best interests of the Company and its stockholders and Carlson Capital has determined that it is in its best interests to come to an agreement with respect to certain matters in respect of the Board of Directors of the Company (the “Board”) and certain other matters, as provided in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. Board Representation and Board Matters.

(a) The Company will, (i) no later than February 29, 2016, increase the size of the Board by one (1) director to eleven (11) directors such that there would be one (1) vacancy on the Board and appoint a highly qualified independent director (who shall not be a current or former employee, advisor, consultant or Affiliate (as defined herein) of Carlson Capital or any of its Affiliates) to be proposed by Carlson Capital and agreed to by the Company in accordance with Section 1(h) below (the “Initial New Director”) to fill the newly created vacancy and (ii) no later than March 31, 2016, further increase its Board size by one additional member (to 12 members total) and appoint a highly qualified independent director (the “Subsequent New Director” and, together with the Initial New Director, the “New Directors”). The Company hereby agrees not to increase the size of the Board to be larger than twelve (12) members at any time prior to the 2016 annual meeting of shareholders (the “2016 Annual Meeting”).

(b) The Company’s slate of nominees for election as directors of the Company at the 2016 Annual Meeting shall include the New Directors (and any Replacement).

(c) Subject to Carlson Capital’s compliance with Section 2(b), the Company will use reasonable best efforts to cause the election of the New Directors (and any Replacement) to the Board at the 2016 Annual Meeting (including recommending that the Company’s stockholders vote in favor of the election of the New Directors (and any Replacement) (along with all of the Company’s nominees) and otherwise supporting the New Directors (and any Replacement) for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate).

---

(d) At the 2016 Annual Meeting, two (2) of the directors serving on the Board on the date hereof shall not seek re-election and the Board shall take all necessary actions to decrease the size of the Board from twelve (12) members to ten (10) members effective immediately after the 2016 Annual Meeting. After the 2016 Annual Meeting and through the completion of the 2017 annual meeting of shareholders (the “2017 Annual Meeting”), the Board shall not increase the size of the Board to more than 10 directors; provided, that during the period between the 2016 Annual Meeting and the 2017 Annual Meeting, the Company shall be permitted to increase the size of the Board in order to appoint additional highly qualified independent directors, recommended by the Nomination and Governance Committee and approved by the Board, so long as an equivalent number of directors serving on the Board on the date hereof do not stand for re-election at the 2017 Annual Meeting.

(e) For so long as the Initial New Director (or any Replacement) serves on the Board, but subject to compliance with New York Stock Exchange listing requirements regarding independence of directors and committee members, the Initial New Director (or any Replacement) shall be appointed to the Nomination and Governance Committee of the Board.

(f) The Initial New Director (and any Replacement) shall be entitled to resign from the Board at any time in his discretion. Should the Initial New Director, or any Replacement thereof, resign from the Board or is unable to serve on the Board due to death, disability or other reasons before the 2017 Annual Meeting, the Company will appoint a replacement, to be proposed by Carlson Capital, and agreed to by the Company in accordance with Section 1(h) below (a “Replacement”). Carlson Capital shall forego the right to propose a Replacement if, following the expiration of the Standstill Period (as defined herein), Carlson Capital engages in any of the actions set forth in Section 2(b).

(g) At all times while serving as a member of the Board, it is acknowledged and agreed that the New Directors (and any Replacement) shall be required to comply with all policies, codes and guidelines applicable to Board members, copies of which, in each case, have been provided to Carlson Capital and will be provided to the New Directors (and any Replacement).

(h) The parties agree that the appointment of the Initial New Director (and any Replacement) is subject to (i) the Board’s exercise of its fiduciary duties and satisfactory completion of its customary due diligence process (including its review of a questionnaire for director nominees, a background check and interviews) and (ii) such Initial New Director or Replacement qualifying as “independent” pursuant to NYSE listing standards and having the relevant financial and business experience to be a director of the Company. In the event the Board finds the Initial New Director (or any Replacement) to be unsuitable, and reasonably objects to the identified Initial New Director (or any Replacement), Carlson Capital shall be entitled to propose a different nominee to the Board, and such nominee will be subject to this same process. The Company and Carlson Capital shall use their respective reasonable best efforts (subject to the candidates meeting the criteria described herein) to ensure that all such director appointments are completed as promptly as practicable and in the case of (x) any Initial New Director proposed by Carlson Capital, no later than February 29, 2016, (y) the Subsequent New Director, no later than March 31, 2016 and (z) any Replacement proposed by Carlson Capital no later than 20 days after identification of the proposed Replacement by Carlson Capital

 

2

---

(together with the submission of all required documentation with respect to such Replacement and the completion of an interview of such Replacement by the Nomination and Governance Committee). Without limiting the foregoing, the Company’s reasonable best efforts to appoint the Subsequent New Director no later than March 31, 2016, shall include using reasonable best efforts to take all actions prior to the appointment of the Subsequent New Director, including identifying such highly qualified independent director.

2. Certain Other Matters.

(a) For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until 12:01 a.m., Eastern time, on the 30th day prior to the advance notice deadline for making director nominations at the 2017 Annual Meeting.

(b) During the Standstill Period, no member of Carlson Capital shall, directly or indirectly, and each member of Carlson Capital shall cause each Carlson Capital Affiliate (as defined herein) not to, and shall use its reasonable best efforts to cause each of its Associates not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the New Directors (and any Replacement) acting in their capacities as a director of the Company):

(i) acquire or cause to be acquired Beneficial Ownership of any Voting Securities (as defined herein) (for purposes of this calculation, including any Synthetic Positions) such that immediately following such purchase Carlson Capital and the Carlson Capital Affiliates would collectively Beneficially Own (for purposes of this calculation, including any Synthetic Positions as Beneficial Ownership of the associated Voting Securities) more than twelve and one-half percent (12.5%) of the Company’s issued and outstanding Voting Securities;

(ii) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist any Person (as defined herein) not a party to this Agreement (a “Third Party”) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);

(iii) encourage, advise or influence any other Person or assist any Third Party in so encouraging, assisting or influencing any Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Company’s recommendation in connection with such matter);

 

3

---

(iv) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (for the avoidance of doubt, excluding any group composed solely of Carlson Capital and the Carlson Capital Affiliates);

(v) present at any annual meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by stockholders or seek the removal of any member of the Board or (except as expressly permitted in this Agreement with respect to a Replacement) propose any nominee for election to the Board or seek representation on the Board;

(vi) make any request for stockholders list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;

(vii) institute, solicit or join, as a party, any litigation, arbitration or other proceeding (including any derivative action) against the Company or any of its future, current or former directors or officers or employees; provided, that nothing shall prevent Carlson Capital from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against Carlson Capital, or (C) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent Carlson Capital from responding to or complying with a validly issued legal process;

(viii) enter into any negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2; or

(ix) contest the validity of, or publicly request any waiver of, the obligations set forth in this Section 2(b).

The restrictions set forth above in this Section 2(b) shall not apply for the duration of any period that the Company is not in material compliance with its obligations under Sections 1(a)-(f), Section 3 and Section 18 (after written notice of such material non-compliance has been provided to the Company and the Company has been given a reasonable opportunity to cure such material non-compliance; provided that such notice and opportunity to cure shall not apply in the case of material noncompliance with Sections 1(a), 1(b) or 1(e)).

(c) Provided that the standstill obligations are in full force and effect, Carlson Capital together with all controlled Affiliates of the members of Carlson Capital (such controlled Affiliates, collectively and individually, the “Carlson Capital Affiliates”) shall cause all Voting Securities owned by them directly or indirectly, whether owned of record or Beneficially Owned, as of the record date for the 2016 Annual Meeting, that are entitled to vote, to be present for quorum purposes and to be voted, (i) for all directors nominated by the Board for election at the 2016 Annual Meeting, and in favor of auditor ratification and “say-on-pay” proposals, and (ii) in accordance with the recommendation of the Board, provided that such recommendation is unanimous (of those voting) and includes the affirmative vote of the New Directors (and any Replacement), on any other proposals or other business that comes before such meeting (other than any proposals relating to mergers, acquisitions or other business combinations or extraordinary transactions, or any amendment to the Company’s organizational documents).

(d) If at any time following the date of this Agreement, Carlson Capital’s aggregate Net Long Position in the Common Shares is less than 5% of the outstanding Common Shares

 

4

---

(the “Minimum Ownership Level”), (i) Carlson Capital shall lose its right to identify an Initial New Director and a Replacement, (ii) the Company shall not be obligated to appoint the Subsequent New Director, (iii) the Company shall not be obligated to nominate the Initial New Director (or any Replacement) and/or the Subsequent New Director for election to the Board at any meeting of stockholders at which directors are to be elected occurring after the time at which Carlson Capital no longer satisfies the Minimum Ownership Level, (iv) the restrictions regarding the size of the Board shall no longer be applicable, and (v) the Board may choose to remove the Initial New Director (or any Replacement) from the Nomination and Governance Committee. Notwithstanding anything to the contrary contained herein, the parties agree that even if Carlson Capital’s Net Long Position is less than the Minimum Ownership Level, neither the Initial New Director, the Subsequent New Director or any Replacement shall be required to resign from the Board.

(e) For purposes of Section 2(b)(i) and Section 2(d) above, the parties shall determine the amount of outstanding Common Shares in accordance with Section 13d-1 of the Exchange Act.

3. Retention of Consultant. As soon as reasonably practicable, but in no event later than February 29, 2016, the Company will retain an experienced operational consultant for purposes of identifying areas of increased operational efficiency and potential cost-cutting measures.

4. Non-Disparagement. During the Standstill Period, Carlson Capital and the Company agree not to make, or cause to be made (whether directly or indirectly), any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, the other party or their respective business, operations or financial performance, officers or directors or any Person who has served as an officer or director of either party in the past, or who serves on or following the date of this Agreement as an officer, director or agent of either party (a) in any document or report filed with or furnished to the SEC or any other governmental agency, (b) in any press release or other publicly available format or (c) to any stockholder, investor, analyst, journalist or member of the media (including without limitation, in a television, radio, internet, newspaper or magazine interview).

5. Public Announcements. Promptly following the execution of this Agreement, the Company shall announce this Agreement by means of a press release in the form attached hereto as Exhibit A (the “Press Release”). Neither the Company nor Carlson Capital or any Carlson Capital Affiliate shall make or cause to be made any public announcement or statement with respect to the subject of this Agreement that is contrary to the statements made in the Press Release, except as required by law or the rules of any stock exchange or with the prior written consent of the other party. The Company acknowledges that Carlson Capital intends to file this Agreement as an exhibit to its Schedule 13D pursuant to an amendment. The Company shall have reasonable advance review and consultation rights upon any Schedule 13D filing (or amendment thereto) made by Carlson Capital with respect to this Agreement. Carlson Capital acknowledges and agrees that the Company intends to file this Agreement and file or furnish the Press Release with the SEC as exhibits to a Current Report on Form 8-K and to file this Agreement as an exhibit to future filings with the SEC.

 

5

---

6. Representations and Warranties of All Parties. Each of the parties represents and warrants to the other party that: (a) such party has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (b) this Agreement has been duly and validly authorized, executed and delivered by it and is a valid and binding obligation of such party, enforceable against such party in accordance with its terms (subject to applicable bankruptcy and similar laws relating to creditors’ rights and to general equity principles); and (c) this Agreement will not result in a violation of any terms or conditions of any agreements to which such Person is a party or by which such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such party.

7. Representations and Warranties of Carlson Capital. Each member of Carlson Capital jointly represents and warrants that, as of the date of this Agreement: (a) Carlson Capital, together with all of the Carlson Capital Affiliates, collectively Beneficially Own an aggregate of 2,267,066 Common Shares; and (b) Carlson Capital has not provided or agreed to provide, and will not provide, any compensation in cash or otherwise to any New Director, solely, in his capacity as a director or director nominee of the Company in connection with such New Director’s nomination and appointment to, or service on, the Board.

8. Affiliates and Associates. Carlson Capital shall cause its Affiliates, agents and other Persons acting on its behalf to, and will use reasonable best efforts to cause its respective Associates to, comply with the terms of this Agreement. The Company shall cause its directors, officers and controlled Affiliates to comply with the terms of this Agreement. Each of Carlson Capital and the Company shall be responsible for any breach of the terms of this Agreement by such Persons, as applicable.

9. Certain Defined Terms. For purposes of this Agreement:

(a) The terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the Securities and Exchange Commission (the “SEC”) under the Exchange Act; provided that neither “Affiliate” nor “Associate” shall include any entity whose equity securities are registered under the Exchange Act (or are publicly traded in a foreign jurisdiction), solely by reason of the fact that a principal of Carlson Capital serves as a member of its board of directors or similar governing body, unless Carlson Capital otherwise controls such entity (as the term “control” is defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) and no entity shall be an Associate solely by reason of clause (1) of the definition of Associate in Rule 12b-2 if it is not otherwise an Affiliate.

(b) “Beneficial Ownership” of Voting Securities means ownership of (i) Voting Securities and (ii) rights or options to own or acquire any Voting Securities (whether such right or option is exercisable immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Person), compliance with regulatory requirements or otherwise).

(c) “Net Long Position” shall mean such Person’s net long position, as defined in Rule 14e-4 under the Exchange Act, mutatis mutandis, in respect of the Voting Securities.

 

6

---

(d) “Person” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature.

(e) “Synthetic Position” shall mean either of (i) any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other security, contract right or derivative position or similar right (including any put or call option or “swap” transaction with respect to any security, other than a broad based market basket or index), whether or not presently exercisable, that has an exercise or conversion privilege or a settlement payment or mechanism at a price related to the value of the Voting Securities or a value determined in whole or in part with reference to, or derived in whole or in part from, the value of the Voting Securities and that increases in value as the market price or value of the Voting Securities decreases or that provides to the holder an opportunity, directly or indirectly, to profit or share in any profit derived from any decrease in the value of the Voting Securities or (ii) any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other security, contract right or derivative position or similar right (including any put or call option or “swap” transaction with respect to any security, other than a broad based market basket or index), whether or not presently exercisable, that has an exercise or conversion privilege or a settlement payment or mechanism at a price related to the value of the Voting Securities or a value determined in whole or in part with reference to, or derived in whole or in part from, the value of the Voting Securities and that increases in value as the market price or value of the Voting Securities increases or that provides to the holder an opportunity, directly or indirectly, to profit or share in any profit derived from any increase in the value of the Voting Securities, in each case of (i) and (ii), regardless of whether (x) such derivative conveys any voting rights in such Voting Securities to such Person or any of such Person’s Affiliates, (y) such derivative is required to be, or capable of being, settled through delivery of such securities, or (z) such Person or any of such Person’s Affiliates may have entered into other transactions that hedge the economic effect of such derivative. A Synthetic Position shall not include (1) any interests, rights, options or other securities set forth in Rule 16a-1(c)(1)-(5) or (7) of the General Rules and Regulations under the Exchange Act or (2) to the extent it would result in duplication, any Voting Securities beneficially owned (as defined in Rule 13d-3 under the Exchange Act) by such Person or its Affiliates or any Net Long Position held by such Person or its Affiliates.

(f) “Voting Securities” shall mean the Common Shares, and any other securities of the Company entitled to vote in the election of directors, or securities convertible into, or exercisable or exchangeable for, Common Shares or other securities, whether or not subject to the passage of time or other contingencies.

10. Miscellaneous. The parties hereto recognize and agree that if for any reason any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money damages would not be an adequate remedy. Accordingly, each party agrees that in addition to other remedies the other party shall be entitled to at law or equity, the other party shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement exclusively in the Delaware

 

7

---

Court of Chancery or, if the Delaware Court of Chancery does not have jurisdiction, other federal or state courts of the State of Delaware. Furthermore, each of the parties hereto: (a) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery or, if the Delaware Court of Chancery does not have jurisdiction, other federal or state courts of the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement; (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (c) agrees that it shall not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than the Delaware Court of Chancery or, if the Delaware Court of Chancery does not have jurisdiction, other federal or state courts of the State of Delaware, and each of the parties irrevocably waives the right to trial by jury with respect to any matter arising under or related to this Agreement; and (d) irrevocably consents to service of process by a reputable overnight mail delivery service, signature requested, to the address of such party’s principal place of business or as otherwise provided by applicable law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT (INCLUDING DISPUTES RELATING THERETO), BY THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.

11. No Waiver. Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.

12. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and may be amended only by an agreement in writing executed by the parties hereto.

13. Notices. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in regard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by email, when such email is sent to the email address set forth below during normal business hours and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal business hours at the address specified in this subsection:

 

if to the Company:
Vitamin Shoppe, Inc.
300 Harmon Meadow Blvd
Secaucus, New Jersey 07094
Attention:		David M. Kastin
		Senior Vice President, General Counsel and Corporate Secretary
Email:		[email protected]

 

8

---

With a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention:		Daniel E. Wolf
		Michael P. Brueck
Email:		[email protected]
		[email protected]
if to Carlson Capital:
Carlson Capital, L.P.
2100 McKinney Avenue
Dallas, TX 75201
Attention:		Shahla F. Ali
Email:		[email protected]
With a copy (which shall not constitute notice) to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention:		Dennis Friedman
		Richard J. Birns
Email:		[email protected]
		[email protected]

14. Severability. If at any time subsequent to the date of this Agreement, any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon the legality or enforceability of any other provision of this Agreement.

15. Counterparts. This Agreement may be executed in two or more counterparts which together shall constitute a single agreement.

16. Successors and Assigns. This Agreement shall not be assignable by any of the parties to this Agreement. This Agreement, however, shall be binding on successors of the parties hereto.

17. No Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and is not enforceable by any other Persons.

18. Fees and Expenses. The Company shall reimburse Carlson Capital for all reasonable and documented out-of-pocket costs, fees and expenses incurred and paid by Carlson Capital in connection with, relating to or resulting from its efforts and actions, and any preparations therefor, prior to the execution and delivery of this Agreement, to consider means

 

9

---

by which the Company could improve its performance and increase shareholder value, including its communications with the Board and the Company’s management and this Agreement. In no event shall (x) the costs, fees and expenses to be paid or reimbursed by the Company pursuant to this Section 18 exceed $100,000 or (y) any member of Carlson Capital be required to provide to the Company any documentation, such as certain details of invoices for legal services, to the extent the provision of which could result in a waiver of the attorney-client privilege. In addition, the Company shall bear all costs and expenses relating to all background checks that it conducts regarding the director nominees, including the Initial New Director. Except as provided in this Section 18, neither the Company, on the one hand, nor Carlson Capital, on the other hand, will be responsible for any costs, fees or expenses of the other in connection with this Agreement.

19. Interpretation and Construction. Each of the parties hereto 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 the same with the advice of said independent counsel. Each party and its counsel cooperated and participated in the drafting and preparation of this Agreement and the documents referred to herein, 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 hereto, and any controversy over interpretations of this Agreement shall be decided without regards to events of drafting or preparation. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The term “including” shall be deemed to mean “including without limitation” in all instances.

20. Amendments. This Agreement may only be amended pursuant to a written agreement executed by Carlson Capital and the Company.

[Signature Pages Follow]

 

10

---

IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or caused the same to be executed by its duly authorized representative as of the date first above written.

 

 

[Signature Page to Agreement]

---

 

[Signature Page to Agreement]

---

 

[Signature Page to Agreement]

---

SCHEDULE A

Double Black Diamond Offshore Ltd.

Black Diamond Relative Value Offshore Ltd.

Black Diamond Relative Value Cayman, L.P.

Black Diamond Offshore Ltd.

Black Diamond SRI Offshore Ltd.

Black Diamond Arbitrage Offshore Ltd.

Carlson Capital, L.P.

Asgard Investment Corp. II

Asgard Investment Corp.

Clint D. Carlson

---

EXHIBIT A

Press Release

 

 

VITAMIN SHOPPE, INC.			NEWS RELEASE
300 Harmon Meadow Blvd Secaucus, NJ 07094 (201) 868-5959 www.vitaminshoppe.com

VITAMIN SHOPPE, INC. ANNOUNCES ENHANCEMENTS TO BOARD OF DIRECTORS

Secaucus, NJ (January 12, 2016) – The Vitamin Shoppe^®, a multi-channel specialty retailer and manufacturer of nutritional products, today announced a number of enhancements to its board of directors, consistent with best-in-class corporate governance practices.

The board will rotate the role of lead director for the second time since the Company’s October 28, 2009 initial public offering. David Edwab, who served as lead director since April 2011, has stepped down from that role and John Bowlin, who became a member of the Vitamin Shoppe board in October 2014, will now serve as lead director.

Separately, the board intends to add two new independent directors over the next 60 to 90 days. The Vitamin Shoppe will identify one candidate and Carlson Capital, one of the Vitamin Shoppe’s largest shareholders, will propose another candidate (subject to acceptability to the board of directors), under an agreement reached between the Vitamin Shoppe and Carlson Capital. Immediately following the 2016 Annual Meeting of Shareholders, it is expected that the board will return to its current size.

As previously disclosed in a Current Report on Form 8-K filed with the Securities and Exchange Commission on January 4, 2016, Richard Markee, who has served as the Company’s Executive Chairman since March 2011, elected not to renew his employment agreement upon its scheduled expiration, consistent with the Company’s long term succession plan. Mr. Markee will remain an integral part of the Vitamin Shoppe in his role as Non-Executive Chairman of the Board.

---

Colin Watts, Chief Executive Officer of the Vitamin Shoppe, commented, “Rick has been a great resource and partner for me during my first year at the Vitamin Shoppe. I look forward to welcoming new board members, as well as Rick’s ongoing guidance, valuable insight and oversight expertise in his new role as Non-Executive Chairman of the Board as the Company moves ahead with its customer reinvention journey.” Mr. Watts further commented, “As we embark on this multi-year journey, we are keenly focused on top line growth and optimizing cost efficiencies. We have been working with a leading reinvention firm to help with this process. We also plan to engage outside expertise to assist us with optimizing cost efficiencies as we move ahead with rolling out our reinvention strategy. We remain keenly focused on driving shareholder value as evidenced by our recent successful efforts to continue to optimize the Company’s balance sheet and accelerate share buybacks.”

Forward-Looking Statements

This press release contains “forward-looking” statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, including with respect to adding individuals to the Company’s board of directors which is subject to the Board’s exercise of its fiduciary duties and satisfactory completion of its customary due diligence process (including its review of a questionnaire for director nominees, a background check and interviews) and (ii) such individuals qualifying as “independent” pursuant to NYSE listing standards and having the relevant financial and business experience to be a director of the Company. These forward-looking statements can be identified by the use of words such as “outlook”, “believes”, “expects”, “potential”, “continues”, “may”, “will”, “should”, “seeks”, “predicts”, “intends”, “plans”, “estimates”, “anticipates”, “target”, “could” or the negative version of these words or other comparable words. These statements are subject to various risks and uncertainties, many of which are outside the Company’s control. The Company believes that all forward-looking statements are based on reasonable assumptions when made; however, it is impossible to predict actual results or outcomes or the effects of risks, uncertainties or other factors on anticipated results or outcomes with certainty and that, accordingly, one should not place undue reliance on these statements. Forward-looking statements speak only as of the date when made and the Company undertakes no obligation to update these statements in light of subsequent events or developments. Actual results may differ materially from anticipated results or outcomes discussed in any forward-looking statement.

---

About the Vitamin Shoppe, Inc. (NYSE: VSI)

Vitamin Shoppe is a multi-channel specialty retailer and contract manufacturer of nutritional products based in Secaucus, New Jersey. In its stores and on its websites, the Company carries one of the most comprehensive retail assortments in the industry, including vitamins, minerals, specialty supplements, herbs, sports nutrition, homeopathic remedies, green living products, and beauty aids. In addition to offering products from approximately 850 national brands, the Vitamin Shoppe also carries products under The Vitamin Shoppe^®, BodyTech^®, True Athlete^®, MyTrition^®, plnt^TM, ProBioCare^TM, Next Step^TM, Betancourt Nutrition and Nutri-Force Sports^® brands. The Vitamin Shoppe conducts business through more than 700 company-operated retail stores under The Vitamin Shoppe, Super Supplements and Vitapath retail banners, and primarily through its website.

 

CONTACTS:
Investors:		Media:
Kathleen Heaney		Meghan Biango
646-912-3844		Manager, Corporate Communications
[email protected]		201-552-6017
		[email protected]

AAB990

---

Serious News for Serious Traders! Try StreetInsider.com Premium Free!

---

You May Also Be Interested In

• Marriott Vacations Worldwide (VAC) ticks higher on new activist investor
• HOOKIPA Pharma Inc. (HOOK) Receives FDA Clearance of INDA for HB-700