UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. __)*

Vintage Capital Management, LLC

4705 S. Apopka Vineland Road, Suite 206

Orlando, FL 32819

(407) 909-8015

Shah Capital Management, Inc.
8601 Six Forks Road, Suite 630
Raleigh, NC 27615
(919) 719-6360

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: x

Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

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

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“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).

^* Percentage calculated based on 24,203,144 shares of common stock, par value $0.01 per share, outstanding as of January 27, 2018, as reported in the Form 10-K for the fiscal year ended December 30, 2017, of Vitamin Shoppe, Inc.

^* Percentage calculated based on 24,203,144 shares of common stock, par value $0.01 per share, outstanding as of January 27, 2018, as reported in the Form 10-K for the fiscal year ended December 30, 2017, of Vitamin Shoppe, Inc.

^* Percentage calculated based on 24,203,144 shares of common stock, par value $0.01 per share, outstanding as of January 27, 2018, as reported in the Form 10-K for the fiscal year ended December 30, 2017, of Vitamin Shoppe, Inc.

^* Percentage calculated based on 24,203,144 shares of common stock, par value $0.01 per share, outstanding as of January 27, 2018, as reported in the Form 10-K for the fiscal year ended December 30, 2017, of Vitamin Shoppe, Inc.

^* Percentage calculated based on 24,203,144 shares of common stock, par value $0.01 per share, outstanding as of January 27, 2018, as reported in the Form 10-K for the fiscal year ended December 30, 2017, of Vitamin Shoppe, Inc.

^* Percentage calculated based on 24,203,144 shares of common stock, par value $0.01 per share, outstanding as of January 27, 2018, as reported in the Form 10-K for the fiscal year ended December 30, 2017, of Vitamin Shoppe, Inc.

The securities to which this statement on Schedule 13D (this “Statement”) relates are the common stock, par value $0.01 per share (the “Common Stock”), of Vitamin Shoppe, Inc., a Delaware corporation (the “Issuer”). The address of the principal executive offices of the Issuer is 300 Harmon Meadow Boulevard, Secaucus, New Jersey 07094.

This Statement is filed by:

Each of the foregoing persons is referred to as a “Reporting Person.” Vintage Capital, Kahn Capital and Mr. Kahn are collectively referred to as the “Vintage Reporting Persons.” Shah Capital, Shah Opportunity and Mr. Shah are collectively referred to as the “Shah Reporting Persons.” Each of the Reporting Persons is party to a Joint Filing and Solicitation Agreement, a copy of which is attached as Exhibit 1. Accordingly, the Reporting Persons are jointly filing this Statement.

The Vintage Reporting Persons and the Shah Reporting Persons each previously filed a Schedule 13G concerning their respective ownership of shares of Common Stock.

(i)       The address of the principal business and principal office of each of the Vintage Reporting Persons is 4705 S. Apopka Vineland Road, Suite 206, Orlando, Florida 32819.

(ii)       The address of the principal business and principal office of each of the Shah Reporting Persons is 8601 Six Forks Road, Suite 630, Raleigh, North Carolina 27615.

The principal business of Vintage Capital is acting as an investment manager.

The principal business of Kahn Capital is acting as a member of Vintage Capital.

The principal occupation of Mr. Kahn is acting as the manager of each of Vintage Capital and Kahn Capital.

The principal business of each of Shah Capital and Shah Opportunity is investing in securities.

The principal occupation of Mr. Shah is serving as the President and Chief Investment Officer of Shah Capital.

(d)       Criminal Convictions

During the past five years, none of the Reporting Persons has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e)       Civil Proceedings

During the past five years, none of the Reporting Persons has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f)       Citizenship

Each of Mr. Kahn and Mr. Shah is a citizen of the United States of America.

Except for the 34,800 shares of Common Stock owned directly by Mr. Shah, which were purchased using his personal funds, all of the shares of Common Stock to which this Statement relates were purchased on behalf of the Reporting Persons using the investment capital of the Reporting Persons. The aggregate purchase price of the 3,587,255 shares of Common Stock acquired by the Vintage Reporting Persons was approximately $14,566,332 (excluding commissions). The aggregate purchase price of the 4,120,000 shares of Common Stock acquired by the Shah Reporting Persons was approximately $21,627,136 (excluding commissions).

The Reporting Persons purchased the shares of Common Stock for investment purposes, and such purchases have been made in the ordinary course of business of the Reporting Persons.

In pursuing such investment purposes, the Reporting Persons may further purchase, hold, vote, trade, dispose or otherwise deal in the Common Stock at times, and in such manner, as they deem advisable to benefit from, among other things, (1) changes in the market prices of the shares of Common Stock; (2) changes in the Issuer’s operations, business strategy or prospects; or (3) from the sale or merger of the Issuer. To evaluate such alternatives, the Reporting Persons will closely monitor the Issuer’s operations, prospects, business development, management, competitive and strategic matters, capital structure, and prevailing market conditions, as well as other economic, securities markets and investment considerations. Consistent with their investment research methods and evaluation criteria, the Reporting Persons may discuss such matters with the management or Board of Directors of the Issuer (the “Board”), other stockholders, industry analysts, existing or potential strategic partners or competitors, investment and financing professionals, sources of credit, and other investors. Such evaluations and discussions may materially affect, and result in, among other things, the Reporting Persons (1) modifying their ownership of the Common Stock; (2) exchanging information with the Issuer pursuant to appropriate confidentiality or similar agreements; (3) proposing changes in the Issuer’s operations, governance or capitalization; (4) pursuing a transaction that would result in the Reporting Persons’ acquisition of all or a controlling interest in the Issuer; or (5) pursuing one or more of the other actions described in subsections (a) through (j) of Item 4 of Schedule 13D.

In addition to the information disclosed in this Statement, the Reporting Persons reserve the right to (1) formulate other plans and proposals; (2) take any actions with respect to their investment in the Issuer, including any or all of the actions set forth in subsections (a) through (j) of Item 4 of Schedule 13D; and (3) acquire additional shares of Common Stock or dispose of some or all of the shares of Common Stock beneficially owned by them, in each case in the open market, through privately negotiated transactions or otherwise. The Reporting Persons may at any time reconsider and change their plans or proposals relating to the foregoing.

In light of the Issuer’s upcoming deadline for stockholder nominations and business proposals, and in order to preserve its rights as a stockholder, on March 9, 2018, Mr. Kahn, as the record holder of 500 shares of Common Stock, delivered a letter to the Issuer (the “Nomination Letter”) nominating a slate of 10 highly qualified director candidates—Matthew E. Avril, Mark Barfield, Brian R. Kahn, Melvin L. Keating, Andrew M. Laurence, Jeremy Nowak, Matthew Perelman, Alexander Sloane, Brent Turner and Patrick Walsh (collectively, the “Nominees”)—for election to the Board at the Company’s 2018 Annual Meeting of Stockholders (the “2018 Annual Meeting”). The Nominees were carefully selected and collectively will bring extensive and relevant experience to the Board. In the Nomination Letter, Mr. Kahn reserved the right to further nominate, substitute or add additional persons in the event that (1) the Issuer purports to increase the number of directorships; (2) the Issuer makes or announces any changes to its by-laws or takes or announces any other action that purports to have, or if consummated would purport to have, the effect of disqualifying any of the Nominees; or (3) any of the Nominees is unable or becomes unwilling for any reason to serve as a director of the Issuer.

The Nomination Letter also includes a proposal to repeal any provision or amendment to the Company’s by-laws adopted by the Board without stockholder approval after the last publicly available amendment to the by-laws.

Pursuant to letter agreements that have been entered into or will be entered into, Vintage Capital, in connection with any solicitation at the Issuer conducted by the Vintage Reporting Persons, will indemnify each of the Nominees against any and all claims of any nature and to reimburse any reasonable and documented out-of-pocket expenses. A form of the indemnification letter agreement is attached as Exhibit 2 and is incorporated by reference.

On March 18, 2018, the Reporting Persons entered into a Joint Filing and Solicitation Agreement (the “Joint Filing and Solicitation Agreement”) in which, among other things, the Reporting Persons agreed to (1) the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Company; and (2) form a “group” for the purpose of, among other things, seeking representation on the Board at the 2018 Annual Meeting. The foregoing description of the Joint Filing and Solicitation Agreement is qualified in its entirety by reference to the Joint Filing and Solicitation Agreement, which is attached as Exhibit 1 and is incorporated by reference.

Other than as described herein, there are no contracts, arrangements, understandings or relationships among the Reporting Persons, or between the Reporting Persons and any other person, with respect to the securities of the Issuer.

(a) and (b) The responses of the Reporting Persons to rows 7, 8, 9, 10, 11 and 13 on the cover pages of this Statement are incorporated herein by reference. As of 4:00 p.m., Eastern time, on March 16, 2018, (1) the Vintage Reporting Persons beneficially owned 3,587,255 shares of Common Stock, representing approximately 14.8% of the outstanding shares of Common Stock; (2) the Shah Reporting Persons beneficially owned 4,120,000 shares of Common Stock, representing approximately 17.0% of the outstanding shares of Common Stock. In the aggregate, the Reporting Persons beneficially own 7,707,255 shares of Common Stock, representing approximately 31.8% of the outstanding shares of Common Stock. The percentages in this paragraph relating to beneficial ownership of Common Stock is based on 24,203,144 shares of Common Stock outstanding as of January 27, 2018, as reported in the Form 10-K for the fiscal year ended December 30, 2017, of the Issuer.

Kahn Capital, as a member and the majority owner of Vintage Capital, may be deemed to have the power to direct the voting and disposition of the shares of Common Stock beneficially owned by Vintage Capital, and may be deemed to be the indirect beneficial owner of such shares. Kahn Capital disclaims beneficial ownership of such shares for all other purposes.

Of the shares of Common Stock held by the Vintage Reporting Persons, 500 shares are held of record by Mr. Kahn. In addition, Mr. Kahn, as the manager of each of Vintage Capital and Kahn Capital, may be deemed to have the power to direct the voting and disposition of the shares of Common Stock beneficially owned by Vintage Capital, and may be deemed to be the indirect beneficial owner of such shares. Mr. Kahn disclaims beneficial ownership of such shares for all other purposes.

Shah Capital, as the investment adviser to Shah Opportunity, may be deemed to have the power to direct the voting and disposition of the shares of Common Stock beneficially owned by Shah Opportunity, and may be deemed to be the indirect beneficial owner of such shares. Shah Capital disclaims beneficial ownership of such shares for all other purposes.

Mr. Shah directly owns 34,800 shares of Common Stock. In addition, Mr. Shah, as the President and Chief Investment Officer of Shah Capital, may be deemed to have the power to direct the voting and disposition of the shares of Common Stock beneficially owned by Shah Opportunity and Shah Capital, and may be deemed to be the indirect beneficial owner of such shares. Mr. Shah disclaims beneficial ownership of such shares for all other purposes.

To the knowledge of each of the Reporting Persons, other than as set forth above, none of the persons named in Item 2 is the beneficial owner of any shares of Common Stock.

(c)       Except as set forth in Schedule A, none of the Reporting Persons has effected any transactions in the Common Stock in the 60 days prior to the date of this Statement.

(d)       No other person is known to the Reporting Persons to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock covered by this Statement.

(e)       Not applicable.

Other than as described in this Statement, to the knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons or between the Reporting Persons and any other persons with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

The following documents are filed as exhibits:

Schedule A

Transactions by the Reporting Persons in the Past 60 Days

The following table sets forth all transactions with respect to the Common Stock effected in the last 60 days by or on behalf of the Reporting Persons, inclusive of any transactions effected through 4:00 p.m., Eastern time, on March 16, 2018. Unless otherwise indicated, all such transactions were effected in the open market.

SIGNATURES

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

Dated: March 19, 2018

EXHIBIT INDEX

Exhibit 1

JOINT FILING AND SOLICITATION AGREEMENT

This joint filing and solicitation agreement (this “Agreement”) is made and entered into as of March 18, 2018, between (a) Vintage Capital Management, LLC, a Delaware limited liability company (“Vintage Capital”), Kahn Capital Management, LLC, a Delaware limited liability company (“Kahn Capital”), and Brian R. Kahn; and (b) Shah Capital Management, Inc., a North Carolina corporation (“SCM”), Shah Capital Opportunity Fund LP, a Delaware limited partnership, and Himanshu H. Shah. The parties to this Agreement are each referred to as a “Party” and referred to collectively as the “Parties” or the “Group.”

WHEREAS, each of the Parties is a stockholder, direct or beneficial, of Vitamin Shoppe, Inc., a Delaware corporation (the “Company”); and

WHEREAS, the Parties wish to form a “group” for the purpose of: (a) seeking representation on the Company’s Board of Directors at its 2018 Annual Meeting of Stockholders or a Special Meeting of Stockholders (whether in lieu of an annual meeting or otherwise) that includes the election of directors (in each case including any adjournments, postponements or other delays thereof, the “2018 Annual Meeting”); (b) taking all other action with respect to the foregoing; and (c) taking any other actions that the Group determines to undertake in connection with the Parties’ respective investments in the Company (collectively, the “Group Activities”).

NOW, IT IS AGREED by the Parties:

1.          Joint Filing. In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), each Party agrees to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Company (including, options to purchase or sell securities of the Company, and swaps, synthetics and other derivative securities or instruments the value of which is solely and directly related to equity securities of the Company) (collectively, “Securities”). Each Party will be responsible for the accuracy and completeness of such Party’s disclosure in any such filing, and is not responsible for the accuracy and completeness of the information concerning the other Parties, unless such Party knows or has reason to know that such information is inaccurate.

2.          Notification of Transactions. So long as this Agreement is in effect, each of the Parties will provide prompt notice to Wilson Sonsini Goodrich & Rosati, Professional Corporation (“WSGR”) of any (a) purchases or sales of Securities; or (b) Securities over which they acquire or dispose of beneficial ownership. Such notice will be given no later than 12 hours after each such transaction. For purposes of this Agreement, the term “beneficial ownership” will have the meaning given to such term set forth in Rule 13d-3 under the Exchange Act.

3.          Purpose. The Parties agree to form the Group for the purpose of undertaking the Group Activities.

4.          Costs. The Parties agree that certain expenses and costs (including all legal fees) are likely to be incurred in connection with the Group’s activities (the “Expenses”). Vintage Capital will be responsible for all Expenses.

5.          Coordination. The Parties will agree in advance upon any filing with the Securities and Exchange Commission filing, press release, communication, shareholder communication, or any proposed agreement or negotiating position of the Group or any Party, in each case in connection with the Group Activities, except as specified below. The Parties will work in good faith to resolve any disagreement that may arise between them concerning decisions to be made, actions to be taken or statements to be made in connection with the Group Activities.

6.          Limited Relationship. The relationship of the Parties will be limited to carrying on the business of the Group in accordance with the terms of this Agreement. Such relationship will be construed and deemed to be for the sole and limited purpose of carrying on such business as described in this Agreement. Nothing in this Agreement will be construed to authorize any Party to act as an agent for any other Party, or to create a joint venture or partnership, or to constitute an indemnification. Except as otherwise provided in this Agreement, nothing in this Agreement will restrict any Party’s right to purchase or sell Securities as it deems appropriate, in its sole discretion, so long as all such purchases and sales are made in compliance with all applicable securities laws and this Agreement.

7.          Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which, taken together, will constitute one and the same instrument, which may be sufficiently evidenced by one counterpart.

8.          Jurisdiction; Governing Law. Each Party irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (the “Chancery Court”) for any action, suit or proceeding arising out of or relating to this Agreement (and agrees not to commence any action, suit, or proceeding relating thereto except in the Chancery Court). To the extent that the Chancery Court would not have subject matter jurisdiction over any such action, suit or proceeding, each Party irrevocably and unconditionally consents to submit to the exclusive jurisdiction of any state or federal court in the State of Delaware (such courts, together with the Chancery Court, the “Chosen Courts”). Each Party irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in the Chosen Courts, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any Chosen Court has been brought in an inconvenient forum. The Parties agree that a final judgment no longer subject to appeal in any such dispute will be conclusive and may be enforced in other jurisdictions by suits on the judgment or in any other manner provided by law. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. This Agreement is governed by and construed in accordance with the laws of the State of Delaware.

9.          Specific Performance. Each Party acknowledges that (a) the Parties would be irreparably injured by a breach of this Agreement; and (b) monetary remedies would be inadequate to protect the non-breaching Parties against any actual or threatened breach or continuation of any breach of this Agreement. Without prejudice to any other rights and remedies otherwise available to the non-breaching Parties, each Party agrees to (i) the granting of equitable relief, including injunctive relief and specific performance, in the other Parties’ favor without proof of actual damages in the event of the actual or threatened breach of this Agreement; and (ii) waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedy will not be deemed to be the exclusive remedy for a breach of this Agreement but will be in addition to all other remedies available at law or equity to the non-breaching Parties.

10.         Termination. This Agreement will terminate upon the earlier of (a) the certification of votes in connection with the 2018 Annual Meeting; or (b) 48 hours after written notice of termination delivered by one Party to all other Parties.

11.         Counsel. Each of the Parties agrees that WSGR will act as counsel for the Group and each of Vintage Capital, Kahn Capital and Mr. Kahn, in each case as it relates to the Group Activities and their investment in the Company.

12.         Filing Requirement. Each of the Parties agrees that this Agreement will be filed as an exhibit to any Schedule 13D that may in the future be required to be filed under applicable law pursuant to Rule 13d-1(k)(1)(iii) under the Exchange Act.

[Signature page follows.]

IN WITNESS WHEREOF, the Parties caused this Agreement to be executed as of the day and year first above written.

[Signature Page to Joint Filing and Solicitation Agreement]

Exhibit 2

Vintage Capital Management, LLC

4705 S. Apopka Vineland Road, Suite 206

Orlando, FL 32819

March 8, 2018

[Name]

[Address]

[Address]

Dear Mr. [Last Name]:

As you know, Vintage Capital Management, LLC, on behalf of itself and its affiliates (collectively, “VCM”), is considering the possibility of commencing a solicitation (the “Solicitation”) of proxies in connection with the 2018 Annual Meeting of Stockholders of Vitamin Shoppe, Inc., a Delaware corporation (the “Company”), or a Special Meeting of Stockholders of the Company in lieu thereof that includes the election of directors (in each case, including any adjournments, postponements or other delays thereof) to, in each case and among other things, elect nominees to serve as directors on the Company’s Board of Directors (the “Board”). This letter agreement (this “Letter Agreement”) will confirm your agreement, subject to the terms and conditions stated herein, with VCM to stand for election as a nominee of VCM to serve as a director of the Company in connection with the Solicitation.

VCM will reimburse you, as promptly as practicable upon your request, for your reasonable and documented out-of-pocket expenses directly related to the performance of your duties under this Letter Agreement with respect to the Solicitation (including travel expenses, if any). This right of reimbursement is in addition to your rights of indemnification described in this Letter Agreement. VCM reserves the right, in its sole discretion at any time, not to nominate you or to withdraw you from serving as a nominee of VCM. Any such action by VCM will not prejudice your rights under this Letter Agreement to reimbursement of certain expenses and the benefits of the indemnification provisions in this Letter Agreement through the date that VCM determines not to nominate you or to withdraw you as a nominee.

Each of VCM and you recognizes that, should you be elected to the Board, all of your activities and decisions as a director will be governed by applicable law and subject to your duties to the stockholders of the Company. As a result, there is not, and can never be, any agreement between you and VCM that governs the decisions that you will make as a director of the Company.

In consideration of your agreement as set forth above, and to the fullest extent permitted by Delaware and other applicable law, VCM agrees to indemnify you against, and hold you harmless from, any and all liabilities, losses, claims, damages, suits, actions, judgments and reasonable costs and expenses actually incurred by you (including reasonable and documented out-of-pocket attorneys’ fees and expenses) (collectively, “Losses”) in connection with the investigation, preparation or defense of any litigation (commenced or threatened), any civil, criminal, administrative or arbitration action, or any claim whatsoever, in each case whether instituted by the Company or any other party, and any and all amounts paid in settlement (with VCM’s consent) by you or on your behalf of any such claim or litigation asserted against, imposed upon or incurred or suffered by you, directly or indirectly, based upon, arising out of or relating to (a) serving as a nominee of VCM; (b) being a “participant in a solicitation” (as defined in the rules and regulations under the Securities Exchange Act of 1934, as amended) in connection with the Solicitation; and (c) being otherwise involved in the Solicitation as a nominee of VCM (in the case of each of (a), (b) and (c), whether before or after the date of this Letter Agreement). Notwithstanding anything to the contrary in this Letter Agreement, VCM will not indemnify you for any action taken or omission (i) by you or on your behalf that occurs subsequent to certification of the results relating to the Solicitation or such earlier time as you are no longer a nominee of VCM for election to the Board; or (ii) by you as a director of the Company, if you are elected. In addition, VCM will not be obligated to provide you with any indemnification with respect to any Losses that (A) arise out of any materially inaccurate written information supplied by you or on your behalf for inclusion in any filings made with any federal or state governmental agency, including any materials related to the Solicitation (including, without limitation, the proxy statement with respect to the Solicitation); or (B) are found in a final judgment by a court, not subject to further appeal, to have resulted from bad faith or willful misconduct on your part. You will repay to VCM any amounts that have been paid by VCM to you in respect of the foregoing in the event that you are found, subject to a final and non-appealable judgment, to not be entitled to indemnification under this Letter Agreement.

Promptly after receipt by you of notice of any such claim or the commencement of any action, proceeding or investigation in respect of which indemnification may be sought as provided above, you must promptly notify VCM’s counsel, Wilson Sonsini Goodrich & Rosati, Professional Corporation, in writing by personal delivery, fax or overnight mail of the receipt of any such notice or commencement of any such action, proceeding or investigation. Any such notice should be sent to the following address: Wilson Sonsini Goodrich & Rosati, Professional Corporation, 650 Page Mill Road, Palo Alto, CA 94303, Attention: Douglas K. Schnell, (650) 493-6811 (fax). The failure to so notify VCM’s counsel will not limit your rights to indemnification hereunder, except to the extent that VCM is actually prejudiced thereby.

In case any such action, proceeding or investigation is brought against you and you notify VCM of the commencement thereof, VCM will have the right to participate therein and, to the extent that VCM so determines, at any time to assume the defense and settlement thereof, with counsel reasonably satisfactory to you. Notwithstanding the prior sentence, if the defendants in any such action include both you and VCM and if you have been advised by counsel reasonably acceptable to VCM that there may be one or more legal defenses available to you that are different from or additional to those available to VCM (a “Conflict Situation”), you will have the right to select up to one separate counsel reasonably acceptable to VCM to participate in the defense of such action on your behalf. VCM will not be responsible for more than one such counsel in each jurisdiction. In the event of a Conflict Situation, you and other persons who are (or were) nominees of VCM to serve as directors of the Company involved in such matter will share one counsel (unless you have been advised by counsel reasonably satisfactory to VCM that there may be one or more legal defenses available to you that are different from or additional to those available to any of such other persons). After notice from VCM to you of its election to assume the defense of any such action, proceeding or investigation, neither VCM nor any of its affiliates will be liable to you under this Letter Agreement for any expenses subsequently incurred by you in connection with the defense thereof, unless you have employed counsel in accordance with this paragraph.

VCM will have the right to settle any action, proceeding or investigation that is brought against you for which indemnification is available under the terms of this Letter Agreement, except that VCM will not settle, without your prior written consent (which you may withhold in your sole discretion), any action, proceeding or investigation in any manner that would impose any penalty, obligation or limitation on you (other than monetary damages for which VCM agrees to be wholly responsible) or that would contain any language (other than a recitation of any amounts to be paid in settlement) that could reasonably be viewed as an acknowledgement of wrongdoing on your part or otherwise as materially detrimental to your reputation.

VCM will not be liable under this Letter Agreement to make any indemnification payment in connection with any claim made against you to the extent (and only to the extent) that you have otherwise received payment or have a right to be indemnified or reimbursed (under any insurance policy, pursuant to any indemnification or reimbursement payment or provision by any party other than VCM, or otherwise) of the amounts otherwise indemnifiable hereunder. Any payments required to be made by VCM pursuant to this Letter Agreement will be remitted to you on a monthly basis as the expenses to which such payments relate are incurred.

For purposes of this Letter Agreement, the termination of any claim, action, suit or proceeding by judgment, order, settlement (whether with or without court approval), or upon a plea of nolo contendere, or its equivalent, will not create a presumption that you did not meet any particular standard of conduct or have any particular belief, or that a court has determined that indemnification is not permitted by applicable law.

In the event of any payment under this Letter Agreement, VCM will be subrogated to the extent of such payment to all of your rights of recovery and you will, at VCM’s expense, execute all documents reasonably required and will do everything that may be reasonably necessary to secure such rights, including, without limitation, the execution of such documents reasonably necessary to enable VCM to effectively bring suit to enforce such rights.

This Letter Agreement shall be governed by and construed by and enforced in accordance with the laws of the State of Delaware. Without limiting the foregoing, each party agrees that service of process on such party at the address listed for such party in this Letter Agreement will be deemed effective service of process on such party. This Letter Agreement may only be amended or waived by a written instrument signed by VCM and you. This Letter Agreement may be executed in textually identical counterparts (including by fax and .pdf), each of which shall constitute an original, but which together shall constitute one agreement. This Letter Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof.

VCM and you irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the United States of America in each case located in the County of New Castle, Delaware for any litigation arising out of or relating to this Letter Agreement, and waive any objection to the laying of venue of any litigation arising out of this Letter Agreement in such courts. VCM and you irrevocably and unconditionally waive and agree not to plead or claim that any such litigation brought in any such court has been brought in an inconvenient forum.

[Signature page follows.]

Please acknowledge your agreement to the foregoing by signing in the space provided below.

[Signature Page to Nominee Letter]