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Delaware
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000-49799
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87-0634302
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(State or other jurisdiction of
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(Commission File Number)
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(I.R.S. Employer
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incorporation or organization)
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Identification Number)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock, $0.0001 par value
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OSTK
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NASDAQ Global Market
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Exhibit No.
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Description of Exhibit
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Form of Executive Retention Agreement
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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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OVERSTOCK.COM, INC.
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By:
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/s/ E. Glen Nickle
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E. Glen Nickle
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Vice President, Legal, and General Counsel
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Date:
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April 17, 2020
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1.
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Employment and Duties: The Company hereby agrees to employ the Employee to perform managerial and other functions of the Company, and the Employee hereby agrees to perform such services for the Company on the terms and conditions hereinafter stated, subject to the directives of the of the Company. Employee shall undertake all of the duties incident to such position. The Employee shall exert his/her best efforts and shall devote his/her full time and attention to the affairs of the Company.
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2.
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Severance: Provided Employee’s termination is neither voluntary nor for cause, the Company agrees at Employee’s termination to:
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(a)
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Pay severance equal to a lump sum cash payment less withholding taxes computed by taking the Employee’s monthly rate of pay and multiplying it by the number of years of service (rounded to the closest 0.25 years) completed by the employee, but not greater than six months or less than two months. On each January 1 after the date of this Agreement, the six-month cap set forth in the preceding sentence will increase by one month, but in no event ever be greater than twelve months.
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(b)
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Accelerate vesting of unvested equity which would have otherwise vested during the post-termination time period which length is determined by using one month for each year of service (rounded to the closest 0.25 years) completed by the employee, but not greater than six months or less than two months. On each January 1 after the date of this Agreement, the six-month cap set forth in the preceding sentence will increase by one month, but in no event ever be greater than twelve months.
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(c)
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At Company’s sole option, it may substitute the payment set forth in subsection (a) above, by forward vesting an equivalent market value amount of Restricted Stock Units (“RSU’s) which Employee has previously been awarded but which have not yet vested under the Company’s 2005 Equity Incentive Plan.
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(d)
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As a condition to receiving the severance set forth above, Employee agrees to execute the Company’s customary employment release which is in effect at the time of termination.
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3.
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For Cause: For purposes of this Agreement, a termination “for cause” shall include, but not be limited to the following:
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(a)
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Employee’s material breach of Employee’s obligations of this Agreement,
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(b)
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Employee’s gross negligence in the performance of his/her duties hereunder,
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(c)
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Employee’s intentional nonperformance or refusal to comply with the reasonable directives of the Company, or
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(d)
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Employee’s commission of a felony criminal conviction, or any other criminal conviction involving Employee's lack of honesty.
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4.
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Choice of Law, Venue and Attorney Fees. This Agreement shall be governed by and interpreted in accordance with Utah law, without application of conflicts of law principles. Any and all disputes or controversies arising out of or relating to this Agreement shall be resolved exclusively in the state or federal courts in Salt Lake City, Utah. Both parties to this Agreement submit to the personal jurisdiction in said courts. The prevailing party to any dispute arising out of or relating in any way to this Agreement shall receive its reasonable attorney fees, costs and expenses incurred resolving the dispute.
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5.
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Amendments. This Agreement may be amended at any time upon unanimous agreement of the parties hereto, which amendment(s) must be reduced to writing and signed by all parties in order to become effective.
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6.
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Severability. In the event that any provision of this Agreement, or any operation contemplated hereunder, is found by a court of competent jurisdiction to be inconsistent with or contrary to any law, ordinance, or regulation, the latter shall be deemed to control and the Agreement shall be regarded as modified to the minimum extent necessary to make the Agreement legal, valid, and enforceable and, in any event, the remainder of this Agreement shall continue in full force and effect.
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