SEC Comment Letter for BED BATH & BEYOND, INC. (NXH, BBBYW) (CIK 0001130713) (NXH) — Jul 23, 2010
BED BATH & BEYOND, INC. (NXH, BBBYW) (CIK 0001130713)
Date: July 23, 2010 · CIK: 0001130713 · Accession: 0000000000-10-041796
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 000-49799, 333-166871
Referenced dates: July 9, 2010, June 11, 2010
Letter
Re: Overstock.com, Inc. Amendment No. 1 to Registrati on Statement on Form S-1 Filed July 9, 2010 File No. 333-166871 Form 10-K for the Fiscal Year Ended December 31, 2010 Filed March 31, 2010 Definitive Proxy Statement on Schedule 14A Filed April 9, 2010 Form 10-Q for the Fiscal Quarter Ended March 31, 2010 Filed May 4, 2010 File No. 000-49799 . Dear Mr. Johnson: We have reviewed your letter dated July 9, 2010 and your amended registration statement filed on July 9, 2010. Please respond to this le tter by amending your registration statement and providing the requested information. Where you do not believe our comment applies to your facts and circumstances or do not believe an am endment is appropriate, please tell us why in your response. We have also reviewed your responses in your July 9, 2010 regarding our comments directed to above Exchange Act filings and ha ve the following comments. In some of our comments, we may ask you to provide us with information so we may better understand your disclosure. Please respond to the comments directed to your Ex change Act reports within ten business days by amending your filings, by providi ng the requested information, or by advising us when you will provide the requested response. If you do not believe our comments apply to your facts and circumstances or do not believe an amendment is appropriate, please tell us why in your response. After reviewing any amendments to your f ilings and the information you provide in response to these comments, we may have additional comments.
July 22, 2010
Jonathan E. Johnson III President Overstock.com, Inc. 6350 South 3000 East Salt Lake City, Utah 84121
Jonathan E. Johnson, III Overstock, Inc. July 22, 2010 Page 2
Registration Statement on Form S-1 The Rescission Offer, page 12
Background and Reasons for the Rescission Offer, page 12
1. We note your response to comment 13 from our letter dated June 11, 2010. In particular, you state that you are a making a “complete re scission offer.” However, based on your disclosure it appears that you are not conducti ng a complete rescission offer since you are not making the offer to all purchasers of the original offering. Please revise your registration statement to indica te that your offer is only a partial offer, in that, you are only making the offer to certain purchasers a nd that you do not intend to make a future offer covering any of the purchasers who are not covered by this offering or tell us why it is not appropriate for you to do so Form 10-K for the Fiscal Year Ended December 31, 2009
Item 7. Management’s Discussion and Anal ysis of Financial Condition…, page 52
Executive Commentary, page 60
2. We note your response to comment 19 from our letter dated June 11, 2010. Please confirm that you will, to the extent appli cable, include the discussion you included in your response regarding “Direct vs. fulfillment partner bus iness” and “Factors to Profitability” in your future filings. Gross Profit, page 62
3. We note your response to comment 22 from our letter dated June 11, 2010. Please confirm that in future filings you will in clude your response as to why you elected to forgive certain underbilllings due from your fulfillment partners during the period covered by the report, as applicable. Redeemable Common Stock, page 74
4. We note your response to comment 25 from our letter dated June 11, 2010. We note that you intend to quantify in future filings your maximum estimated liability at various recent market prices. Please provide a sample of this disclosure and please confirm that you will disclose in future filin gs, if true, that your estimated liability represents the dollar amount of common stock that was acquired by particip ants at a per share price greater than the hypothetical or recent prices you used to calculate your estimated liability and these purchasers are the ones more likely to accept the offer.
Jonathan E. Johnson, III Overstock, Inc. July 22, 2010 Page 3
Note 16. Commitments and Contingencies, page F-35 5. We note your response to comment 30 from our letter dated June 11, 2010. Please show us what your disclosure will look like revised. You state you propose to disclose your potential losses in excess of the amounts acc rued that are reasonably possible in future filings. Please explain why you do not believe it is material to inve stors to amend your filing to disclose your exposure to loss for t hose matters, such as the California District Attorney matter where it is not currently disclosed, or di sclose that you are unable to estimate the potential loss or range of loss with any reasonable certainty. Definitive Proxy Statement on Schedule 14A
Base Salary, page 24
6. We note your response to comment 35 from our letter dated June 11, 2010. Please discuss the aspects of Mr. Johnson’s perfor mance that led your Compensation Committee to increase Mr. Johnson’s salary and how th ey determined that the increase from $225,000 to $250,000 was appropriate. Executive Compensation Action Taken After Year-End, page 27
7. We note your response to comment 38 from our letter dated June 11, 2010. Please confirm that you will discuss in your futu re fiscal year 2010 executive compensation disclosure the reason(s) the Compensation Co mmittee elected to incr ease the salaries of your named executive officers and why in the amounts selected. Directors Compensation Table, page 33
8. We note your response to comment 41 from our letter dated June 11, 2010. We note that you paid Mr. Joyce $1,250,000 because you “consid ered that a fair payment for the results he had achieved for the Company.” Please describe the results he achieved for you and how you determined that $1,250,000 was a fair payment. Form 10-Q for the Fiscal Quarter Ended March 31, 2010
Item 4. Controls and Procedures, page 38
Changes in Internal Control Over Financial Reporting, page 39
9. We note your response to comment 43 from our letter dated June 11, 2010. You indicated that changes to your internal contro ls over financial report ing were “in progress at March 31, and had not been completed at th at date…” Please tell us what you mean by “in progress” and why these “in progress” chan ges did not materially affect your internal controls over fina ncial reporting.
Jonathan E. Johnson, III Overstock, Inc. July 22, 2010 Page 4
Correspondence Dated July 9, 2010
10. We note that you provided in the closing para graph of your July 9, 2010 letter the final set of acknowledgements found on page 11 of our June 21, 2010 letter. However, please have an appropriate representative of the Company provide the first set of acknowledgements that begin on page 10 of our June 11, 2010 letter, which begin with the language “should the Commission or the staff,” as these acknowledgements differ from the acknowledgements you provided. You may contact Robert Babul a, Staff Accountant, at ( 202) 551-3339 or in his absence Donna DiSilvio, Senior Staff Accountant, at (202) 551-3202 if you have questions regarding comments on the financial statements and related ma tters. Please contact Robert W. Errett, Staff Attorney, at (202) 551-3225, or Mara Ransom, Lega l Branch Chief, at (202) 551-3264, or me at (202) 551-3720 with any other questions.
S i n c e r e l y , H. Christopher Owings A s s i s t a n t D i r e c t o r
cc: Thomas W. Adkins Bracewell & Giuliani LLP via facsimile
Show Raw Text
July 22, 2010
Jonathan E. Johnson III President Overstock.com, Inc. 6350 South 3000 East Salt Lake City, Utah 84121
Re: Overstock.com, Inc.
Amendment No. 1 to Registrati on Statement on Form S-1
Filed July 9, 2010 File No. 333-166871 Form 10-K for the Fiscal Year Ended December 31, 2010 Filed March 31, 2010 Definitive Proxy Statement on Schedule 14A Filed April 9, 2010 Form 10-Q for the Fiscal Quarter Ended March 31, 2010
Filed May 4, 2010
File No. 000-49799 .
Dear Mr. Johnson:
We have reviewed your letter dated July 9, 2010 and your amended registration statement
filed on July 9, 2010. Please respond to this le tter by amending your registration statement and
providing the requested information. Where you do not believe our comment applies to your
facts and circumstances or do not believe an am endment is appropriate, please tell us why in
your response.
We have also reviewed your responses in your July 9, 2010 regarding our comments
directed to above Exchange Act filings and ha ve the following comments. In some of our
comments, we may ask you to provide us with information so we may better understand your
disclosure. Please respond to the comments directed to your Ex change Act reports within ten
business days by amending your filings, by providi ng the requested information, or by advising
us when you will provide the requested response. If you do not believe our comments apply to your facts and circumstances or do not believe an amendment is appropriate, please tell us why
in your response.
After reviewing any amendments to your f ilings and the information you provide in
response to these comments, we may have additional comments.
Jonathan E. Johnson, III
Overstock, Inc. July 22, 2010
Page 2
Registration Statement on Form S-1
The Rescission Offer, page 12
Background and Reasons for the Rescission Offer, page 12
1. We note your response to comment 13 from our letter dated June 11, 2010. In particular,
you state that you are a making a “complete re scission offer.” However, based on your
disclosure it appears that you are not conducti ng a complete rescission offer since you are
not making the offer to all purchasers of the original offering. Please revise your registration statement to indica te that your offer is only a partial offer, in that, you are
only making the offer to certain purchasers a nd that you do not intend to make a future
offer covering any of the purchasers who are not covered by this offering or tell us why it
is not appropriate for you to do so
Form 10-K for the Fiscal Year Ended December 31, 2009
Item 7. Management’s Discussion and Anal ysis of Financial Condition…, page 52
Executive Commentary, page 60
2. We note your response to comment 19 from our letter dated June 11, 2010. Please
confirm that you will, to the extent appli cable, include the discussion you included in
your response regarding “Direct vs. fulfillment partner bus iness” and “Factors to
Profitability” in your future filings.
Gross Profit, page 62
3. We note your response to comment 22 from our letter dated June 11, 2010. Please confirm that in future filings you will in clude your response as to why you elected to
forgive certain underbilllings due from your fulfillment partners during the period
covered by the report, as applicable.
Redeemable Common Stock, page 74
4. We note your response to comment 25 from our letter dated June 11, 2010. We note that
you intend to quantify in future filings your maximum estimated liability at various
recent market prices. Please provide a sample of this disclosure and please confirm that you will disclose in future filin gs, if true, that your estimated liability represents the
dollar amount of common stock that was acquired by particip ants at a per share price
greater than the hypothetical or recent prices you used to calculate your estimated
liability and these purchasers are the ones more likely to accept the offer.
Jonathan E. Johnson, III
Overstock, Inc. July 22, 2010
Page 3
Note 16. Commitments and Contingencies, page F-35
5. We note your response to comment 30 from our letter dated June 11, 2010. Please show
us what your disclosure will look like revised. You state you propose to disclose your potential losses in excess of the amounts acc rued that are reasonably possible in future
filings. Please explain why you do not believe it is material to inve stors to amend your
filing to disclose your exposure to loss for t hose matters, such as the California District
Attorney matter where it is not currently disclosed, or di sclose that you are unable to
estimate the potential loss or range of loss with any reasonable certainty.
Definitive Proxy Statement on Schedule 14A
Base Salary, page 24
6. We note your response to comment 35 from our letter dated June 11, 2010. Please discuss the aspects of Mr. Johnson’s perfor mance that led your Compensation Committee
to increase Mr. Johnson’s salary and how th ey determined that the increase from
$225,000 to $250,000 was appropriate.
Executive Compensation Action Taken After Year-End, page 27
7. We note your response to comment 38 from our letter dated June 11, 2010. Please
confirm that you will discuss in your futu re fiscal year 2010 executive compensation
disclosure the reason(s) the Compensation Co mmittee elected to incr ease the salaries of
your named executive officers and why in the amounts selected.
Directors Compensation Table, page 33
8. We note your response to comment 41 from our letter dated June 11, 2010. We note that
you paid Mr. Joyce $1,250,000 because you “consid ered that a fair payment for the
results he had achieved for the Company.” Please describe the results he achieved for you and how you determined that $1,250,000 was a fair payment.
Form 10-Q for the Fiscal Quarter Ended March 31, 2010
Item 4. Controls and Procedures, page 38
Changes in Internal Control Over Financial Reporting, page 39
9. We note your response to comment 43 from our letter dated June 11, 2010. You indicated that changes to your internal contro ls over financial report ing were “in progress
at March 31, and had not been completed at th at date…” Please tell us what you mean by
“in progress” and why these “in progress” chan ges did not materially affect your internal
controls over fina ncial reporting.
Jonathan E. Johnson, III
Overstock, Inc. July 22, 2010 Page 4
Correspondence Dated July 9, 2010
10. We note that you provided in the closing para graph of your July 9, 2010 letter the final
set of acknowledgements found on page 11 of our June 21, 2010 letter. However, please
have an appropriate representative of the Company provide the first set of
acknowledgements that begin on page 10 of our June 11, 2010 letter, which begin with
the language “should the Commission or the staff,” as these acknowledgements differ
from the acknowledgements you provided.
You may contact Robert Babul a, Staff Accountant, at ( 202) 551-3339 or in his absence
Donna DiSilvio, Senior Staff Accountant, at (202) 551-3202 if you have questions regarding
comments on the financial statements and related ma tters. Please contact Robert W. Errett, Staff
Attorney, at (202) 551-3225, or Mara Ransom, Lega l Branch Chief, at (202) 551-3264, or me at
(202) 551-3720 with any other questions.
S i n c e r e l y ,
H. Christopher Owings A s s i s t a n t D i r e c t o r
cc: Thomas W. Adkins Bracewell & Giuliani LLP
via facsimile