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TABLE OF CONTENTS
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
Filed by the Registrant ☒ Filed by a Party other than the Registrant ☐
Check the appropriate box:
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Filed by the Registrantý |
Filed by a Party other than the Registranto |
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Preliminary Proxy Statement |
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
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Definitive Proxy Statement |
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Definitive Additional Materials |
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Soliciting Material under §240.14a-12
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| | | | Beyond, Inc. |
Overstock.com, Inc. |
(Name of Registrant as Specified In Its Charter) |
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant) |
Payment of Filing Fee (Check all boxes that apply):
Payment of Filing Fee (Check the appropriate box): |
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No fee required. |
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Fee paid previously with preliminary materials. |
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Fee computed on table belowin exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11. |
| | (1) | | Title of each class of securities to which transaction applies:
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| | (2) | | Aggregate number of securities to which transaction applies:
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| | (3) | | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
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| | (4) | | Proposed maximum aggregate value of transaction:
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| | (5) | | Total fee paid:
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Fee paid previously with preliminary materials. |
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
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Amount Previously Paid:
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| | (2) | | Form, Schedule or Registration Statement No.:
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| | (3) | | Filing Party:
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TableTABLE OF CONTENTS
Special Note to Stockholders
On behalf of Contentsthe Beyond, Inc. Board of Directors and our executive management team, I’m proud to recognize the substantial progress that was made in the last quarter of 2023 to kick-start a strategic business transformation that we believe will set us up for long-term success. Since Beyond, Inc. launched in November 2023, significant progress has been made to lay the foundation for a high growth, differentiated business model with high customer affinity.
Our extreme focus is to build the business quickly and effectively. At the center of this is a high-performing team, led by a group of innovative and talented retail executives. After my recent appointment as Executive Chairman of the Beyond, Inc. Board in February 2024, ecommerce veteran Chandra Holt joined us as the Division Chief Executive Officer, Bed Bath & Beyond, Dave Nielsen was appointed to Division Chief Executive Officer, Overstock, and Adrianne Lee, our Chief Financial Officer, took on an expanded role as Chief Financial & Administrative Officer. I am impressed by Chandra, Dave, and Adrianne’s collective wealth of experience and am excited about the impact their leadership will have on our business.
With the right leaders in place, the team is executing well against our strategic priorities, including expanded customer offerings, heightened operational excellence, and enhanced stockholder value.
In February 2024, we announced that our active customers had returned to year-over-year growth for the first time in three years, with over 700,000 customers added to our customer file. We also announced our plans to launch additional brands that will allow us to reach the end consumer for the things they’re looking to buy at various life stages, including Baby & Beyond, Kids & Beyond, College Living, and others. In March 2024, we announced the acquisition of the intellectual property and other brand assets of Zulily, the flash sale pioneer and ecommerce retailer. As a trusted and well-known name, Zulily complements Beyond’s suite of brands, including our relaunched Overstock brand. There’s a lot of work ahead, but I’m pleased with the continuous achievements that are being made each day.
Our Board continues to support the executive management team through the highest levels of corporate governance, with processes aimed to strengthen our compliance efforts, improve the quality and transparency of our reporting, and maximize long-term stockholder value. As announced in November 2023, we believe it’s imperative that stockholders have the ability to assess each board member’s performance and contributions on an annual basis. As a result, at this annual meeting, we are presenting a management proposal that would declassify the Board. In addition, we have restructured our executive compensation to incentivize company performance and align plans to deliver shareholder value. More details on the proposals to declassify the Board and approve certain performance-based compensation are provided in the accompanying proxy statement.
It's a time of great transition at Beyond – with new brands, new executives, and a new strategic vision that sets the company up for success and sets us apart from the competition. We ended 2023 and began 2024 focused on the commitments we’ve made to our employees, customers, vendor partners, and stockholders, all while connecting consumers with products and services they love. I’m optimistic about the bright future ahead of us and am glad you’re here for the journey. Thank you for the trust you have placed in us. We appreciate your investment in Beyond.
Marcus A. Lemonis
Executive Chairman of the Board of Directors
March 28, 2024
Midvale, Utah
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799 W. Coliseum Way
Midvale, Utah 84047
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
Notice of Annual Meeting of Stockholders
To Be Held at
1:12:00 p.m.
Mountain Time on May
9, 201821, 2024
Dear Fellow Stockholders:
We cordially invite you to attend the 20182024 Annual Meeting of Stockholders of Overstock.com,Beyond, Inc. (the "Company"“Company” or “Beyond”). The meeting will be held at the offices of the Company, located at 799 W. Coliseum Way, Midvale, Utah, at 1:12:00 p.m. Mountain Time on May 9, 2018. 21, 2024 (the “Annual Meeting”). In order to provide expanded access and enable more of our stockholders to attend and participate, the meeting will be a virtual stockholder meeting, conducted via live audio webcast, through which you can submit questions, and vote online. The meeting can be accessed by visiting https://meetnow.global/M7X9UAS and entering your control number (which can be found on your proxy card or notice of internet availability mailed to you).
At the meeting,
holders of our common stock, our Blockchain Voting Series A Preferred Stock and our Voting Series B Preferred Stock (collectively, our "Voting Shares")stockholders will vote on the following matters:
1.The election of three Class I directors of the Company to serve terms of three years. The Company's Board of Directors intends to present Patrick M. Byrne, Barclay F. Corbus and Jonathan E. Johnson III for election to the Board; and
2.The ratification of the appointment of KPMG LLP as the Company's independent registered public accounting firm for the fiscal year ending December 31, 2018.
1.
| The election of two directors of the Company. The Company’s Board of Directors intends to present Joanna C. Burkey and Barclay F. Corbus for election to the Board; |
2.
| The ratification of the appointment of KPMG LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2024; |
3.
| The approval, on an advisory (non-binding) basis, of the compensation paid by the Company to its named executive officers (the “Say on Pay Vote”); |
4.
| The approval of an amendment (the “Declassification Amendment”) to the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Current Charter”), to declassify the Company’s Board of Directors; |
5.
| The approval of an amendment to the Company’s Amended and Restated 2005 Equity Incentive Plan (the “2005 Plan”) to increase the per participant limit on the number of performance shares that may be granted in each calendar year to 250,000; and |
6.
| The approval of the grant of a performance-based stock option to Marcus A. Lemonis, the Company’s Executive Chairman (the “Executive Chairman Performance Award”). |
Stockholders will also consider and act upon any other matter properly coming before the Annual
Meeting, or any continuation, postponement, or adjournment of the Annual Meeting.
Following the
meeting,Annual Meeting, we
willintend to discuss our business and answer appropriate questions.
Holders
Stockholders of record of shares of our Voting Shares at the close of business on March 12, 201825, 2024, are entitled to vote at the meeting and any continuations, postponements, or adjournments. To ensure that your vote is recorded promptly,please votesubmit a proxy as soon as possible, even if you plan to virtually attend the meeting in person.meeting. We encourage you to votesubmit a proxy to have your shares voted at the meeting via the Internetinternet or by telephone. If you received a printed set of proxy materials, you also have the option of votingsubmitting your proxy by completing, signing, dating, and returning the proxy card that accompanied the printed materials. Submitting your vote viaprior to the Internet or by telephone or proxy cardmeeting will not affect your right to vote in personat the meeting if you decide to attend the annual meeting.virtually.
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We are mailing to some of our stockholders a notice of
Internetinternet availability of proxy materials instead of a paper copy of this
proxy statementProxy Statement and our Annual Report on Form 10-K for the
fiscal year ended December 31,
20172023 (the
"2017“2023 Form
10-K"10-K”). The notice contains instructions on how to access
those documentsthe Proxy Statement and 2023 Form 10-K via the
Internet.internet. The notice also contains instructions on how to request a paper copy of our proxy materials, including this
proxy statement,Proxy Statement, our
20172023 Form 10-K and a form of proxy card or voting instruction card, as applicable. Stockholders who do not receive a notice of
Internetinternet availability of proxy materials will receive a paper copy of the proxy materials by mail. We anticipate that this process will minimize the costs of printing and distributing our proxy materials.
Thank you for being a stockholder. We appreciate your ownership interest in and support of Beyond.
Sincerely,
Marcus A. Lemonis
Executive Chairman of the Board of Directors
March 28, 2024
Midvale, Utah
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| | | By Order of the Board of Directors, |
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Allison H. Abraham
Chairwoman of the Board2024 Proxy Statement | iii |
Midvale, Utah
March 20, 2018
Table of ContentsTABLE OF CONTENTS
Important Notice Regarding the Availability of Proxy Materials for the
Annual Meeting of Stockholders to be held on May
9, 201821, 2024.
The Notice of Annual Meeting, Proxy Statement, and Annual Report on Form 10-K for the fiscal year
ended December 31,
20172023 are available at
http: https://www.overstock.com/proxy.investors.beyond.com/financials/annual-reports.Whether or not you plan to virtually attend the meeting, please votesubmit your proxy via the Internetinternet, telephone, or by phone or by
completing, signing, dating, and returning the accompanyingyour Proxy Card in the enclosed self-addressed,
stampedprepaid business reply envelope.
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Cautionary Note Regarding Forward-Looking Statements
This proxy statement contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Such forward-looking statements include all statements other than statements of historical fact, including but not limited to statements regarding our goals, commitments, strategies, and our executive compensation program. Additional information regarding factors that could materially affect results and the accuracy of the forward-looking statements contained herein may be found in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on February 23, 2024, and in our subsequent filings with the SEC.
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OVERSTOCK.COM, INC.
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Beyond, Inc.
799 W. Coliseum Way
PROXY STATEMENTANNUAL MEETING OF STOCKHOLDERSProxy Statement
2024 Annual Meeting of Stockholders
To Be Held at
1:12:00 p.m.
Mountain Time on May
9, 2018Our Board of Directors (the
"Board"“Board”) is soliciting proxies for the
20182024 Annual Meeting of Stockholders of
Overstock.com,Beyond, Inc.
("Overstock,"(“Beyond,” the
"Company," "we"“Company,” “we” or
"our"“our”)
to, which will be held at
the offices of the Company, located at 799 W. Coliseum Way, Midvale, Utah, at 1:12:00 p.m. Mountain Time on May
9, 2018.21, 2024 (the “Annual Meeting”). The Annual Meeting will be a virtual stockholder meeting conducted via live audio webcast through which you can submit questions and vote online. You can access the Annual Meeting by visiting https://meetnow.global/M7X9UAS and entering your control number (which can be found on your proxy card or notice of internet availability mailed to you). This Proxy Statement contains important information for you to consider when deciding how to vote on the matters before the meeting.
We have elected to provide access to our proxy materials to our stockholders via the Internet.internet. Accordingly, a notice of Internetinternet availability of proxy materials has beenwill be mailed to the majoritymost of our stockholders, while otherstockholders. Other stockholders have requested and will instead receivedreceive paper copies of the proxy materials accessible via the Internet. Stockholders who received theinternet. The notice of Internetinternet availability of proxy materials have the abilitycontains instructions on how to access the Proxy Statement and our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 (the “2023 Form 10-K”) via the internet. The notice also contains instructions on how to request a paper copy of our proxy materials, athttp://www.overstock.com/including this Proxy Statement, our 2023 Form 10-K and a form of proxy card or request that a printed set ofvoting instruction card, as applicable.
Please follow the
proxy materials be sent to them by following the instructions
set forth on the notice of
Internetinternet availability
of proxy materials. Please visithttp://www.overstock.com/proxymailed to you for details on how to instruct us to sendrequest future proxy materials be sent to you electronically by e-mail or in printed form by mail.mail on an ongoing basis. If you choose to receive future proxy materials by e-mail, you will receive an e-mail next year with instructions containing a link to those materials or a link to a special website to access our proxy materials. Your election to receive proxy materials by e-mail or printed form by mail will remain in effect until you terminate it.
Choosing to receive future proxy materials by e-mail will allow us to provide you with the proxy materials you need in a timelier manner,
and will save us the cost of printing and mailing documents to
you. Our principal offices are located at 799 W. Coliseum Way, Midvale, Utah 84047,you, and be more environmentally responsible.
We will send or make available to stockholders proxy materials, which include this Proxy Statement, the proxy card, and the 2023 Form 10-K on or about April 1, 2024.
Chief Executive Officers
The Company had two Chief Executive Officers (“CEO’s”) during 2023: Jonathan E. Johnson III, who served as CEO through November 6, 2023, and David J. Nielsen, who served as interim CEO from November 6, 2023 until February, 20, 2024.
On February 20, 2024, Marcus A. Lemonis was named our
telephone number is (801) 947-3100.Executive Chairman of the Board of Directors, Chandra R. Holt was named our Division CEO, Bed Bath & Beyond, and David J. Nielsen was named our Division CEO, Overstock.
Corporate Name Change and Stock Exchange Listing Transfer
Effective November 6, 2023, we changed our corporate name from Overstock.com, Inc. to Beyond, Inc. Concurrently, with this corporate name change, we transferred the listing of our common stock from the Nasdaq Global Market to the New York Stock Exchange (“NYSE”), and changed our ticker symbol from OSTK to BYON. Following this corporate name change, we continued to operate our furniture and home furnishings ecommerce business under the Bed Bath & Beyond brand. The corporate name change followed our June 28, 2023 acquisition of the Bed Bath & Beyond brand and associated intellectual property.
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Record Date and Voting Securities
The Board set March
12, 201825, 2024 as the record date for the
meeting.meeting (“Record Date”). Stockholders who owned shares of our
common stock
our Blockchain Voting Series A Preferred Stock and our Voting Series B Preferred Stock (collectively, our "Voting Shares") at the close of business on
that datethe Record Date are entitled to
virtually attend and vote at the meeting. Each share is entitled to one vote.
ThereAt the Record Date, a total of 45,733,478 shares of stock were
29,483,993 Voting Shares outstanding
onand entitled to vote at the
record date.meeting. A majority of the outstanding
Voting Sharesshares of stock present at the meeting
in person or by proxy will constitute a quorum for the transaction of business.
Voting materials, which include this
If you were a stockholder as of the close of business on the Record Date and have a control number, you may vote at and ask questions during the meeting by following the instructions available on the virtual meeting website. Whether or not you plan to attend the meeting, you may still submit your vote in advance of the meeting via the internet or by telephone or proxy card as instructed in the Proxy Statement and notice of internet availability. If you do not have your control number, you may attend the Annual Meeting as a guest, but you will not have the option to vote your shares during the meeting or ask questions during the meeting.
Attendance and Participation
To access the virtual meeting please visit https://meetnow.global/M7X9UAS. To login to the virtual meeting, you have two options: Join as a “Guest” or as a “Stockholder”. If you join as a “Stockholder” you will be required to enter a control number. Your control number can be found on your proxy card, and our Annual Report on Form 10-Kvoter instruction form, or notice of internet availability mailed to you. We will provide closed captioning for the year ended December 31, 2017 (the "2017 Form 10-K"), are first being sentduration of the virtual meeting. We will make available for inspection the list of our registered stockholders entitled to vote at the Annual Meeting for at least 10 days prior to the Annual Meeting at the Company’s principal place of business located at 799 W. Coliseum Way, Midvale, Utah 84047.
If you encounter any technical difficulties with the virtual meeting website on the meeting day during either the check-in or
given to stockholdersthe meeting itself, please call the technical support number at (781) 575-2748 or toll-free at (888) 724-2416. The technical support number will also be posted on
or about March 21, 2018. The date of this Proxy Statement is March 20, 2018.
the virtual meeting website.
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2 | 2024 Proxy Statement | | | | |
PROXY STATEMENT
| | | 1 | |
QUESTIONS AND ANSWERS ABOUT THE ANNUAL MEETING AND PROCEDURAL MATTERS
| | | 4 | |
PROPOSALS TO BE VOTED ON
| | | 9 | |
PROPOSAL 1—ELECTION OF DIRECTORS
| | | 9 | |
PROPOSAL 2—RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
| | | 9 | |
OTHER BUSINESS
| | | 12 | |
THE BOARD
| | | 12 | |
General
| | | 12 | |
Board Independence
| | | 12 | |
Committees of the Board
| | | 13 | |
Board and Committee Meetings
| | | 14 | |
Board Leadership Structure
| | | 14 | |
Board Role in Risk Oversight
| | | 14 | |
Director Qualifications
| | | 14 | |
Identification and Evaluation of Nominees for Director
| | | 15 | |
Communications with the Board
| | | 15 | |
Annual Meeting Attendance
| | | 15 | |
Director Resignation Policy
| | | 15 | |
Code of Ethics
| | | 16 | |
Policies and Procedures Regarding Related Party Transactions
| | | 16 | |
Information Regarding Director Nominees and Other Directors
| | | 16 | |
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
| | | 20 | |
EXECUTIVE COMPENSATION
| | | 20 | |
COMPENSATION DISCUSSION AND ANALYSIS
| | | 20 | |
Introduction
| | | 20 | |
2017 Say on Pay Vote and 2017 Say on When Vote
| | | 21 | |
Compensation Objectives
| | | 21 | |
Employment Agreements
| | | 21 | |
Retirement Benefits
| | | 22 | |
Role of Compensation Consultants
| | | 22 | |
Elements of Compensation
| | | 22 | |
Nonqualified Deferred Compensation Plan
| | | 24 | |
Executive Compensation Action Taken After Year End
| | | 25 | |
Timing of Equity Awards
| | | 25 | |
Severance and Change of Control Arrangements
| | | 25 | |
Security Ownership Requirements
| | | 26 | |
Hedging Policy
| | | 26 | |
COMPENSATION COMMITTEE REPORT
| | | 26 | |
Compensation Paid to Executive Officers
| | | 27 | |
SUMMARY COMPENSATION TABLE
| | | 27 | |
Grants of Plan Based Awards
| | | 28 | |
GRANTS OF PLAN BASED AWARDS
| | | 28 | |
Outstanding Equity Awards at Fiscal Year End
| | | 28 | |
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR END
| | | 29 | |
Option Exercises and Stock Vested in 2017
| | | 29 | |
OPTION EXERCISES AND STOCK VESTED
| | | 30 | |
Nonqualified Deferred Compensation Plan
| | | 30 | |
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| | | | |
TABLE OF CONTENTS Questions and Answers about the Annual Meeting and Procedural Matters
NONQUALIFIED DEFERRED COMPENSATION
| | | 30 | |
COMPENSATION OF DIRECTORS
| | | 31 | |
DIRECTOR COMPENSATION TABLE
| | | 32 | |
POTENTIAL PAYMENTS UPON TERMINATION OR CHANGE OF CONTROL
| | | 33 | |
Acceleration upon change of control
| | | 33 | |
No acceleration of equity awards upon retirement, death, disability
| | | 34 | |
Deferred compensation plan
| | | 34 | |
CEO PAY RATIO
| | | 34 | |
EQUITY COMPENSATION PLAN INFORMATION
| | | 36 | |
REPORT OF THE AUDIT COMMITTEE
| | | 36 | |
SHARE OWNERSHIP OF MANAGEMENT, DIRECTORS, NOMINEES AND 5% STOCKHOLDERS
| | | 38 | |
OTHER INFORMATION
| | | 41 | |
Certain Relationships and Related Party Transactions
| | | 41 | |
Section 16(a) Beneficial Ownership Reporting Compliance
| | | 42 | |
Procedure for Submitting Stockholder Proposals
| | | 43 | |
Procedure for Nominating Directors for Election at an Annual Meeting or a Special Meeting
| | | 44 | |
Costs of Proxy Solicitation
| | | 45 | |
Householding
| | | 45 | |
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QUESTIONS AND ANSWERS ABOUT THE ANNUAL MEETING
AND PROCEDURAL MATTERS
What is the purpose of the Annual Meeting?
At our Annual Meeting, stockholders will act upon the matters outlined in the meeting notice provided with this
proxy statement,Proxy Statement, including:
The election of directors;two directors of the Company. The Company’s Board of Directors intends to present Joanna C. Burkey and
• Barclay F. Corbus for election to the Board;The ratification of our Audit
Committee'sCommittee’s appointment of KPMG LLP as
our independent registered public accounting firm for 2018. Who can vote at the Annual Meeting?
Stockholders of record who owned Overstock common stock, Blockchain Voting Series A Preferred Stock or Voting Series B Preferred Stock (collectively, the "Voting Shares") at the close of business on March 12, 2018 (the "Record Date") may attend and vote at the Annual Meeting. Each Voting Share is entitled to one vote. There were 29,483,993 Voting Shares outstanding at the close of business on the Record Date.
What are the recommendations of the Board?
Overstock's Board unanimously recommends votes:
"FOR" the election of the nominated directors (see proposal 1); and
"FOR" the ratification of KPMG LLP as the Company'sCompany’s independent registered public accounting firm for the fiscal year ending December 31, 2018 (see proposal 2)
2024;
The approval, on an advisory (non-binding) basis, of the compensation paid by the Company to its named executive officers (the “Say on Pay Vote”);
The approval of an amendment (the “Declassification Amendment”) to the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Current Charter”), to declassify the Company’s Board of Directors;
The approval of an amendment to the Company’s Amended and Restated 2005 Equity Incentive Plan (the “2005 Plan”) to increase the per participant limit on the number of performance shares that may be granted in each calendar year to 250,000; and
The approval of the grant of a performance-based stock option to Marcus A. Lemonis, the Company’s Executive Chairman (the “Executive Chairman Performance Award”).
Who can vote at the Annual Meeting?
Stockholders of record who owned shares of our stock at the close of business on the Record Date may virtually attend and vote at the Annual Meeting. Holders of our stock are entitled to cast one vote for each share of stock held by them on the Record Date. At the Record Date, a total of 45,733,478 shares of stock were outstanding and entitled to vote at the Annual Meeting.
What are the recommendations of the Board?
Beyond’s Board unanimously recommends votes:
1)
| “FOR” Joanna C. Burkey and “FOR” Barclay F. Corbus as directors (see Proposal 1); |
2)
| “FOR” the ratification of KPMG LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2024 (see Proposal 2); |
3)
| “FOR” the Say on Pay Vote (see Proposal 3); |
4)
| “FOR” the approval of the Declassification Amendment to declassify the Company’s Board (see Proposal 4); |
5)
| “FOR” the approval of an amendment to the Company’s 2005 Plan to increase the per participant limit on the number of performance shares that may be granted in each calendar year to 250,000 (see Proposal 5); and |
6)
| “FOR” the approval of the Executive Chairman Performance Award (see Proposal 6). |
The presence in personvirtually or by proxy of the holders of a majority of the Voting Sharesshares of our stock outstanding on the Record Date will be necessary to constitute a quorum for the Annual Meeting. A quorum is necessary to transact business at the meeting. Voting Shares
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Questions and Answers about the Annual Meeting and Procedural Matters |
We will count shares of stock represented by proxies that reflect abstentions or
"broker non-votes" (i.e.“broker non-votes” (i.e., shares held by a broker or nominee that are represented at the meeting, but with respect to which such broker or nominee is not empowered to vote on a particular proposal) will be counted as present and entitled to vote for purposes of determining the presence of a quorum. The inspector of election will tabulate the proxies and votes cast prior to the meeting and at the meeting to determine whether a quorum is present.
You may submit your
voteproxy to have your shares voted via the
Internet,internet, by telephone, or
in personvirtually at the
annual meeting.Annual Meeting. If you received printed proxy materials, you also have the option of submitting your proxy card by
mail or attendingmail. In addition, you can virtually attend the meeting and
deliveringvote by following the
proxy card.instructions available on the virtual meeting website. The designated proxies will vote according to your instructions; however, if you are a registered stockholder and you return an executed proxy card without specific instructions on how to vote, the proxies will vote:
"FOR" the election of the nominated directors in proposal 1; and
"FOR" the ratification of KPMG LLP as our independent registered public accounting firm in proposal 2.
1)
| “FOR” Joanna C. Burkey and “FOR” Barclay F. Corbus as directors (see Proposal 1); |
2)
| “FOR” the ratification of KPMG LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2024 (see Proposal 2); |
3)
| “FOR” the Say on Pay Vote (see Proposal 3); |
4)
| “FOR” the approval of the Declassification Amendment to declassify the Company’s Board (see Proposal 4); |
5)
| “FOR” the approval of an amendment to the Company’s 2005 Plan to increase the per participant limit on the number of performance shares that may be granted in each calendar year to 250,000 (see Proposal 5); and |
6)
| “FOR” the approval of the Executive Chairman Performance Award (see Proposal 6). |
If you
beneficially own your shares or are a
"street name"“street name” stockholder and you do not return instructions on how to vote to your broker,
the proxies will not vote your shares
will not be votedon any of the Proposals except
on proposalfor Proposal 2. The voting of shares held by
"street name"“street name” stockholders is further discussed below. Additionally, in order to vote at the meeting, you will need to
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obtain a signed legal proxy from the broker or nominee that holds your shares, because the broker or nominee is the legal, registered owner of the shares. If you have the broker'sbroker’s proxy, you may vote by ballot or you may complete and deliver another proxy card in personvirtually at the meeting.
If you hold
Voting Sharesshares of our stock in a retirement or savings plan or other similar plan, you may submit your vote via the
Internetinternet or by telephone or by means of the direction on the proxy card. The trustee or administrator of the plan will vote according to your directions and the rules of the plan.
How can I attend the meeting with the ability to ask a question and/or vote?
The Annual Meeting will be a completely virtual meeting of stockholders, which we will conduct exclusively by webcast. You are entitled to participate in the Annual Meeting only if (i) your shares of the Company’s stock are registered directly in your name with our transfer agent, Computershare, as of the close of business on the Record Date (“Registered Holder”), or (ii) if you hold a valid legal proxy for the Annual Meeting if you are a beneficial holder and hold your shares through an intermediary, such as a bank or broker (“Beneficial Holder”).
We are not holding a physical meeting. We will begin the online meeting promptly at 12:00 p.m. Mountain Time. We encourage you to access the meeting prior to the start time leaving ample time for the check in. Please follow the registration instructions as outlined below.
As a Registered Holder, you will be able to attend the Annual Meeting online, ask a question, and vote by visiting https://meetnow.global/M7X9UAS and following the instructions on your notice, proxy card, or on the instructions that accompanied your proxy materials.
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Questions and Answers about the Annual Meeting and Procedural Matters |
If you are a Beneficial Holder and want to attend the Annual Meeting online by webcast (with the ability to ask a question and/or vote, if you choose to do so) you have two options:
(1)
| Registration in Advance of the Annual Meeting |
| Submit proof of your proxy power (“Legal Proxy”) from your broker, bank, or other nominee reflecting your Beyond holdings along with your name and email address to Computershare. |
| You must label requests for registration as “Legal Proxy” and we must receive them no later than 3:00 p.m. Mountain Time on May 15, 2024. You will receive a confirmation of your registration by email after we receive your registration materials. |
| You should direct requests for registration to us at the following: |
| By email: Forward the email from your broker granting you a Legal Proxy, or attach an image of your Legal Proxy, to legalproxy@computershare.com. |
By mail: | | | Computershare
Beyond Legal Proxy
P.O. Box 43001
Providence, RI 02940-3001 |
(2)
| Register at the Annual Meeting |
| Beneficial Holders can also register online at the Annual Meeting to attend, ask questions, and vote. We expect that the vast majority of Beneficial Holders will be able to fully participate using the control number received with their voting instruction form. Please note, however, that we provide this option as a convenience to Beneficial Holders only, and we make no guarantee this option will be available for every type of Beneficial Holder voting control number. The inability to provide this option to any or all Beneficial Holders shall in no way impact the validity of the Annual Meeting. Beneficial Holders may choose the Register in Advance of the Annual Meeting option above, if they prefer to use the traditional, paper-based option for registering for the Annual Meeting. |
| Please go to https://meetnow.global/M7X9UAS for more information on the available options and registration instructions. |
Do I need to register to attend the meeting virtually?
Registration in advance is only required if you are a Beneficial Holder, as set forth above.
How can I vote online at the meeting?
If you are a Registered Holder, follow the instructions on the notice, email, or proxy card that you received to access the meeting.
If you are a Beneficial Holder, please see the registration options set forth in numbers (1) and (2) above.
Online voting will be available during the meeting. To ensure that your vote is recorded promptly, please submit a proxy as soon as possible, even if you plan to virtually attend the meeting.
Why are you holding a virtual meeting instead of a physical meeting?
We are pleased to embrace technology which allows for expanded access and improved communication for our stockholders and the Company. We believe that hosting a virtual meeting will enable more of our stockholders to attend and participate in the meeting since our stockholders can participate from any location around the world with internet access.
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What if I have trouble accessing the Annual Meeting virtually?
The virtual meeting platform is supported across browsers and devices running the most up-to-date version of applicable software and plugins. Participants should ensure that they have a strong and reliable internet connection wherever they intend to participate in the meeting. We encourage you to access the meeting prior to the start time. A link on the meeting page will provide further assistance should you need it, or you may call (888) 724-2416.
What happens if a nominee is unable to stand for election?
The
If any director nominee should be unable to serve, or for good cause will not serve, the Nominating and Corporate Governance Committee of the Board
of Directors may select a substitute
nominee.nominee or the Board may elect to reduce its size. In that case, if you have submitted your proxy via the
Internetinternet or by telephone or completed and returned your proxy card or voting instruction card, the proxy holders will have the discretion to vote your shares for the substitute nominee. They cannot vote for more than
three Class Ithe two nominees.
We have no reason to believe that any of the nominees will be unable to serve if elected.
Can I
votesubmit a proxy via the
Internetinternet or by telephone?
You may submit your
voteproxy to have your shares voted at the Annual Meeting via the
Internetinternet or by telephone by following the instructions contained in the notice of
Internetinternet availability of proxy materials. If you received a printed set of
the proxy materials, you may submit your
voteproxy via the
Internetinternet or by telephone by following the instructions contained on the proxy card that accompanied the printed materials.
If you are a
registered stockholder,Registered Holder, the deadline for submitting your
voteproxy by telephone or via the
Internetinternet is 11:59 p.m. Eastern Time on May
8, 2018.20, 2024. If you are a participant in the
OverstockCompany 401(k) plan, the deadline for submitting your voting directions by telephone or via the
Internetinternet is
2:00 a.m.11:59 p.m. Eastern Time on May
3, 2018.16, 2024.
Can I change my vote or revoke my proxy?
Subject
Registered Stockholders:
Prior to the Annual Meeting and subject to the deadlines set forth in the paragraph above, you may change your vote at any time before
the proxy is exercisedsuch deadline by re-submitting your
voteproxy via the
Internetinternet or by
telephone.telephone or by virtually attending the Annual Meeting and voting at the Annual Meeting by filling out an online ballot.
If you are a registered stockholder and have delivered a proxy, you may revoke your proxy at any time before the proxy is exercisedproxies vote your shares by filing with our corporateCorporate Secretary a written notice of revocation at our Company headquarters at the address shown on the first page of this proxy statement. AtProxy Statement. The revocation must be received prior to the meeting,time the proxies vote your shares.
During the Annual Meeting, you
also may revoke your proxy by
submittingvoting via online ballot. You must be logged in as a
written revocation or“Stockholder” and not as a
later-dated proxy“Guest” to
vote at the
inspector of election. Yourmeeting, and your virtual attendance at the meeting
alone will not by itself revoke your proxy.
Beneficial Stockholders:
If your shares are held in
"street name"“street name” or you are a participant in the
OverstockCompany 401(k) plan, please contact your broker, nominee, trustee, or administrator to determine whether
and how you will be able to revoke or change your vote.
Why did I receive a notice of
Internetinternet availability of proxy materials instead of a full set of the proxy materials?
The
To be environmentally conscious, and in accordance with the rules of the U.S. Securities and Exchange Commission (the "SEC"“SEC”) which allow companies to furnish their proxy materials via the Internet. Accordingly,internet, we sent some of our stockholders a notice of Internetinternet availability of proxy materials for this year's annual meeting of stockholders. Otheryear’s Annual Meeting. We sent some stockholders were instead sent paper copies of the proxy materials accessible via the Internet. Instructionsinternet. You can find instructions on how to access the proxy materials via the Internetinternet or to request a paper copy can be found in the notice of Internetinternet availability of proxy materials. In addition, stockholders may request future proxy materials be sent to you in printed form by mail or electronically by e-mail on an ongoing basis by submitting a requestfollowing the instructions on the notice of internet availability mailed to us athttp://www.overstock.com/proxy.you. A stockholder'sstockholder’s election to receive proxy materials by mail or e-mail will remain in effect until the stockholder terminates it.
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Can I vote my shares by filling out and returning the notice of
Internetinternet availability of proxy materials?
No,
but the notice of
Internetinternet availability of proxy materials
is not a form for voting, but provides instructions on how to vote your shares.
What is the voting requirement to approve each of the proposals?
Assuming a quorum is present, the matters to come before the Annual Meeting that are listed in the Notice of Annual Meeting of Stockholders require the votes described below to be approved.
Proposal 1—Election of
Directors—Directors—Directors shall beto our Board are elected by a plurality of the votes cast by the holders of Voting Shares. This meansshares of stock, meaning that the three nominees for the applicable election receiving the highest numbersnumber of Voting Sharesshares voted "for"“for” their election will be elected as Class I members of the Board of Directors. IfBoard. Our director resignation policy requires that if any nominee for director fails to receive a greater number of "for"“for” votes than "withheld"“withheld” votes or instructions, our director resignation policy requiresin an uncontested election (such as at the Annual Meeting), such person tomust tender his or her resignation to the Chairpersonchairperson of the Board within five business days following certification of the vote. See "The“The Board—Director Resignation Policy." With respect to the election of directors, you may vote "for" or "withhold" authority to vote for each of the nominees for election. If you "withhold" authority to vote with respect to one or more director nominees, your vote will have no effect on the election of such nominees. Broker non-votes also will have no effect on the election of directors.” There is no cumulative voting in the election of directors.
| • | Votes Withheld. With respect to the election of directors, you may vote “for” or “withhold” authority to vote for any nominee for election. If you “withhold” authority to vote with respect to any director nominee, your vote will have no effect on the election of such nominee. |
| • | Broker Non-Votes. Broker non-votes also will have no effect on the election of directors. |
Proposal 2—Ratification of our Audit Committee'sCommittee’s appointment of KPMG LLP as our independent registered public accounting firm—thefirm—The affirmative vote of the holders of a majority of the shares of Voting Sharesstock present in person or represented by proxy and voting on the matter (which shares voting affirmatively also constitute at least a majority of the required quorum) is required to approve this proposal. You may vote "for," "against,"“for,” “against,” or "abstain"“abstain” on this proposal.
| • | Abstentions. Abstentions and broker non-votes will have no effect on the determination of whether this proposal has received the vote of a majority of the shares of our stock present or represented by proxy and voting at the meeting. However, abstentions could prevent the approval of this proposal if the number of affirmative votes, though a majority of the votes represented and cast, does not constitute a majority of the required quorum. |
| • | Broker Non-Votes. We do not expect any broker non-votes on this proposal. However, we understand that certain brokers have elected not to vote even on routine matters. See “What are broker non-votes?” below. If a broker or other nominee has made this decision and they do not receive voting instructions, a broker non-vote will have no effect on the determination of whether this proposal has received the vote of a majority of the shares of our stock present or represented by proxy and voting at the meeting. However, broker non-votes could prevent the approval of this proposal if the number of affirmative votes, though a majority of the votes represented and cast, does not constitute a majority of the required quorum. |
Proposal 3—Say on Pay Vote—The affirmative vote of the holders of a majority of the Voting Sharesshares of stock present virtually or represented by proxy and voting on the matter (which shares voting affirmatively also constitute at least a majority of the required quorum) is required to approve this proposal. You may vote “for,” “against,” or “abstain” on this proposal.
| • | Abstentions. Abstentions will have no effect on the determination of whether this proposal has received the vote of a majority of the shares of stock present or represented by proxy and voting at the meeting. However, abstentions could prevent the approval of this proposal if the number of affirmative votes, though a majority of the votes represented and cast, does not constitute a majority of the required quorum. |
| • | Broker Non-Votes. Broker non-votes will have no effect on the determination of whether this proposal has received the vote of a majority of the shares of stock present or represented by proxy and voting at the meeting. However, broker non-votes could prevent the approval of this proposal if the number of affirmative votes, though a majority of the votes represented and cast, does not constitute a majority of the required quorum. |
Proposal 4—Amendment to the Company’s Current Charter to declassify the Board of Directors—The affirmative vote of the holders of a majority of the issued and outstanding shares of the Company’s common stock is required to approve this proposal. You may vote “for,” “against,” or “abstain” on this proposal.
| • | Abstentions. Abstentions will have the effect of votes “against” this proposal. |
| • | Broker Non-Votes. Broker non-votes will have the effect of votes “against” this proposal. |
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Proposal 5—Amendment to the Company’s Amended and Restated 2005 Equity Incentive Plan—The affirmative vote of the holders of a majority of the stock present or represented by proxy and voting on the matter (which shares voting affirmatively also constitute at the meeting. However, abstentions and broker non-votes could prevent the approval of this proposal if the number of affirmative votes, though a majority of the votes represented and cast, does not constituteleast a majority of the required quorum.quorum) is required to approve this proposal. You may vote “for,” “against,” or “abstain” on this proposal.
| • | Abstentions. Abstentions will have no effect on the determination of whether this proposal has received the vote of a majority of the shares of our stock present or represented by proxy and voting at the meeting. However, abstentions could prevent the approval of this proposal if the number of affirmative votes, though a majority of the votes represented and cast, does not constitute a majority of the required quorum. |
| • | Broker Non-Votes. Broker non-votes will have no effect on the determination of whether this proposal has received the vote of a majority of the shares of our stock present or represented by proxy and voting at the meeting. However, broker non-votes could prevent the approval of this proposal if the number of affirmative votes, though a majority of the votes represented and cast, does not constitute a majority of the required quorum. |
Proposal 6—Approval of the Executive Chairman Performance Award—The affirmative vote of the holders of a majority of the stock present or represented by proxy and voting on the matter (which shares voting affirmatively also constitute at least a majority of the required quorum) is required to approve this proposal. You may vote “for,” “against,” or “abstain” on this proposal.
| • | Abstentions. Abstentions will have no effect on the determination of whether this proposal has received the vote of a majority of the shares of our stock present or represented by proxy and voting at the meeting. However, abstentions could prevent the approval of this proposal if the number of affirmative votes, though a majority of the votes represented and cast, does not constitute a majority of the required quorum. |
| • | Broker Non-Votes. Broker non-votes will have no effect on the determination of whether this proposal has received the vote of a majority of the shares of our stock present or represented by proxy and voting at the meeting. However, broker non-votes could prevent the approval of this proposal if the number of affirmative votes, though a majority of the votes represented and cast, does not constitute a majority of the required quorum. |
What are
Broker Non-Votes?broker non-votes?
Stockholders who hold their shares through a broker or other nominee (in
"street name"“street name”)
, must provide specific instructions to their brokers or other nominee as to how to vote their shares, in the manner prescribed by their broker or other nominee. In the absence of instructions,
and in accordance with applicable stock exchange rules, brokers and nominees typically have the discretion to vote such shares on
routine matters, for example the ratification of the appointment of auditors, but not on non-routine matters. If a broker or nominee has not received voting instructions from an account holder and does not have discretionary authority to vote shares on a particular item because it is a non-routine matter, a
"broker non-vote"“broker non-vote” occurs.
However, we understand that certain brokers have elected not to vote even on routine matters, such as the ratification of the appointment of auditors, without your voting instructions. If your broker or other nominee has made this decision, and you do not provide voting instructions, your vote will not be cast for any of the Proposals. Accordingly, we urge you to direct your broker or other nominee how to vote by returning your voting materials as instructed or by obtaining a proxy from your broker or other nominee in order to vote your shares electronically at the Annual Meeting.
Which proposals are considered
"routine"“routine” or
"non-routine"“non-routine”?
Only
Proposal 2 (the proposed ratification of our independent registered public accounting firm) is considered a routine matter. A broker or other nominee may generally vote in their discretion on routine matters, and therefore no broker non-votes are expected in connection with Proposal No. 2. ProposalProposals 1, is3, 4, 5, and 6 are considered non-routine.non-routine and, therefore, brokers cannot vote shares with respect to such proposals with respect to shares that the broker does not receive instructions.
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How many shares of Series A Preferred, Series B Preferred and Common Stockstock are outstanding and entitled to vote at the meeting?
At the Record Date, a total of
29,483,993 Voting Shares45,733,478 shares of stock were outstanding and entitled to vote at the
meeting, consisting of 126,565 shares of Blockchain Voting Series A Preferred Stock ("Series A Preferred"), 554,694 shares of Voting Series B Preferred Stock ("Series B Preferred"), and 28,802,734 shares of Common Stock.meeting.
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TABLE OF CONTENTS Are any shares entitled to a class vote on any of the proposals to be considered at the meeting?
None of the outstanding shares are entitled to a separate class vote on any of the proposals to be considered at the meeting. The Series A Preferred, the Series B Preferred and the Common Stock will all vote together as a single class on each of the proposals, and each share will be entitled to one vote on each of the proposals.
Questions and Answers about the Annual Meeting and Procedural Matters |
How many votes are required to approve other matters that may come before the stockholders at the meeting?
The
We require the affirmative vote of the holders of a majority of the
Voting Sharesshares of stock represented and voting at the meeting (which shares voting affirmatively also constitute at least a majority of the required quorum)
will be required to approve any other matters that may properly come before the meeting, unless a different vote is required by law, by our Certificate of Incorporation,
or by our
bylaws.bylaws, or applicable law.
Is my vote kept confidential?
Proxies,
We keep confidential and do not disclose proxies, ballots and voting tabulations identifying stockholders
are kept confidential and will not be disclosed except as may be necessary to meet legal requirements.
Where do I find the voting results of the meeting?
We
willintend to announce preliminary voting results at the
meeting, andmeeting. We will
also file a Form 8-K with the SEC reporting the results within four business days after the date of the meeting. You can get a copy of that Form 8-K by
calling Overstock Investor Relations at (801) 947-3100 or the SEC at (800) SEC-0330 for the location of the nearest public reference room,e-mailing ir@beyond.com or through the EDGAR system at
www.sec.gov.https://www.sec.gov. You can also get a copy from our website at
http:https://www.overstock.com/proxyinvestors.beyond.com/financials/sec-filings.
Who pays for the proxy solicitation process?
We make the solicitation on behalf of the Company and the Board. We will pay the costs of soliciting proxies, including the cost of preparing, posting, and mailing proxy materials. In addition to soliciting stockholders by mail, we will request brokers, banks, and other nominees to solicit their customers who hold shares of
Overstock commonour stock
or Series B Preferred in street name. We may reimburse such brokers, banks, and nominees for their reasonable
out-of- pocketout-of-pocket expenses. We may also use the services of our officers, directors, and employees to solicit proxies, personally or by telephone, mail, facsimile, or email, without additional compensation other than reimbursement for reasonable out-of-pocket expenses. We intend to use the services of
a proxy solicitation firmGeorgeson LLC in connection with the meeting,
including to assist in the distribution of proxy materials and
the solicitation of proxies from individual stockholders as well as brokerage firms, fiduciaries, custodians, institutional investors, and other similar organizations representing beneficial owners of shares for the meeting. We anticipate that the costs of such services will be approximately
$9,500$64,000 plus reimbursement for reasonable out-of-pocket expenses.
How can I get an additional copy of the proxy materials?
If you would like an additional copy of this
proxy statementProxy Statement or our
20172023 Form 10-K, these documents are available in digital form for download or review at
http:https://www.overstock.com/proxyinvestors.beyond.com/financials/annual-reports. Alternatively, we will promptly send a copy to you at no charge upon request by mail to
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Overstock.com, Beyond, Inc., Attention: Investor Relations, 799 W. Coliseum Way, Midvale, Utah 84047, or by calling Overstock Investor Relations at (801) 947-3100.
e-mailing ir@beyond.com.
Who can help answer my questions?
If you have questions about voting or the proposals described in this Proxy Statement, please call Georgeson Inc.,LLC, our proxy solicitor, toll-free at 866-432-2791.(866) 357-5237.
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