Overstock.com 2004 Annual Report Download - page 105

Stabilization, Short Positions, Market Making and Trading," are correct and constitute the only information furnished in writing to the Company by the Initial
Purchasers specifically for inclusion in the Preliminary Offering Memorandum and the Offering Memorandum, as the case may be.
8. Defaulting Initial Purchasers. (a) If, on the Delivery Date, any Initial Purchaser defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Initial Purchasers shall be obligated to purchase the number of Notes which the defaulting Initial Purchaser agreed
but failed to purchase on the Delivery Date in the respective proportions which the aggregate amount of Notes set opposite the name of each remaining non-
defaulting Initial Purchaser in Schedule 1 hereto bears to the aggregate amount of Notes set forth opposite the names of all the remaining non-defaulting
Initial Purchasers in Schedule 1 hereto; provided, however, that the remaining non-defaulting Initial Purchasers shall not be obligated to purchase any of the
Notes on the Delivery Date if the total amount of Notes which the defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase on such date
exceeds 10% of the total aggregate amount of the Notes to be purchased on the Delivery Date. If the foregoing maximum is exceeded, the remaining non-
defaulting Initial Purchasers, or those other purchasers satisfactory to the Representative who so agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them, the total amount of Notes to be purchased on the Delivery Date. If the remaining Initial
Purchasers or other underwriters satisfactory to the Representative do not elect to purchase on the Delivery Date the aggregate amount of Notes which the
defaulting Initial Purchasers agreed but failed to purchase, this Agreement shall terminate without liability on the part of any non-defaulting Initial Purchaser
and the Company, except that the Company will continue to be liable for the payment of expenses to the extent set forth in Sections 4, 7 and 10. As used in
this Agreement, the term "Initial Purchaser" includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 8(a), purchases Notes which a defaulting Initial Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial Purchaser of any liability it may have to the Company for damages caused by its default. If
other Initial Purchasers are obligated or agree to purchase the Notes of a defaulting or withdrawing Initial Purchaser, either the Representative or the
Company may postpone the Delivery Date for up to seven full Business Days in order to effect any changes that, in the opinion of counsel to the Company or
counsel to the Initial Purchasers, may be necessary in the Offering Memorandum or in any other document or arrangement.
9. Termination. The obligations of the Initial Purchasers hereunder may be terminated by the Initial Purchasers by notice given to and received by the
Company prior to delivery of and payment for the Notes if, prior to that time, any of the events described in Sections 5(k) or (l) shall have occurred or if the
Initial Purchasers shall decline to purchase the Notes for any reason permitted under this Agreement.
10. Reimbursement of Initial Purchasers' Expenses. If (a) the Company shall fail to tender the Notes for delivery to the Initial Purchasers by reason of
any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or because any other condition of the Initial
Purchasers' obligations hereunder required to be fulfilled by the Company (including, without limitation, with respect to the transactions) is not fulfilled or
(b) the Initial Purchasers shall decline to purchase the Notes for any reason permitted under this Agreement (including the termination of this Agreement
pursuant to Section 9), the Company shall reimburse the Initial Purchasers for the fees and expenses of their counsel and for such other out-of-pocket
expenses as shall have been incurred by them in connection with this Agreement and the proposed purchase of the Notes, and upon demand the Company
shall pay the full amount thereof to the Initial Purchasers. If this Agreement is terminated pursuant to Section 8 by reason of the default of one or more Initial
Purchasers, the Company shall not be obligated to reimburse any defaulting Initial Purchasers on account of those expenses, but shall continue to be obligated
to reimburse the other Initial Purchasers.
11. Notices, etc. All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail, telex or facsimile transmission to Lehman Brothers Inc., 745 Seventh Avenue, New
York, New York 10019, Attention: Syndicate Department (Fax: [phone]); and
(b) if to the Company, shall be delivered or sent by mail, telex or facsimile transmission to Overstock.com, Inc., 6322 South 3000 East, Suite 100, Salt
Lake City, UT 84121, Attention: Jonathan E. Johnson III (Fax: [phone]), with a copy to (which shall not constitute notice) Bracewell & Patterson,
L.L.P., 111 Congress Avenue, Suite 2300, Austin, Texas 78701, Attention Thomas W. Adkins (Fax: [phone]).
Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the Initial Purchasers, the Company
and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that the
representations, warranties, indemnities and agreements of the Company contained in this Agreement shall also be deemed to be for the benefit of the
directors, officers and employees of the Initial Purchasers and the person or persons, if any, who control any Initial Purchaser within the meaning of
Section 15 of the Act and any indemnity agreement of the Initial Purchasers contained in Section 7(b) of this Agreement shall be deemed to be for the benefit
of directors, officers and employees of the Company, and any person controlling the Company within the meaning of Section 15 of the Act. Nothing
contained in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 11, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations, warranties and agreements of the Company and the Initial Purchasers contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Notes and shall
remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any of them or
any person controlling any of them.
14. Definition of the Terms "Business Day" and "Subsidiary". For purposes of this Agreement, (a) "business day" means any day on which The
Nasdaq National Market System is open for trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the rules and regulations promulgated under
the Act.
15. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
16. Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument.