Overstock.com 2004 Annual Report Download - page 100

$1,000) of Optional Notes as to which the Initial Purchasers are exercising the Option and which Initial Purchaser or Initial Purchasers, severally and not
jointly, are exercising such option.
The date for the delivery of and payment for any Optional Notes, being herein referred to as an "Optional Delivery Date," which may be the First
Delivery Date (the First Delivery Date and the Optional Delivery Date, if any, being sometimes referred to as a "Delivery Date"), shall be determined by the
Initial Purchasers but shall not be later than five full business days after written notice of election to purchase Optional Notes is given. Delivery of the
Optional Notes shall be made to the Initial Purchasers against payment of the purchase price by the Initial Purchasers. Payment for the Optional Notes shall be
effected either by wire transfer of immediately available funds to an account with a bank in The City of New York, the account number and the ABA number
for such bank to be provided by the Company to the Initial Purchasers at least two business days in advance of the Optional Delivery Date, or by such other
manner of payment as may be agreed by the Company and the Initial Purchasers.
(c) The Company will deliver against payment of the purchase price the Notes in the form of one or more permanent global certificates (the "Global
Notes"), registered in the name of Cede & Co., as nominee for The Depository Trust Company ("DTC"). Beneficial interests in the Notes will be shown on,
and transfers thereof will be effected only through, records maintained in book-entry form by DTC and its participants.
The Global Notes will be made available, at the request of the Initial Purchasers, for checking at least 24 hours prior to such Delivery Date.
(d) Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligations of the
Initial Purchasers hereunder.
3. Further Agreements of the Company. The Company further agrees:
(a) To advise the Initial Purchasers promptly of any proposal to amend or supplement the Offering Memorandum and not to effect any such amendment
or supplement without the consent of the Initial Purchasers, which shall not be unreasonably withheld. If, at any time prior to completion of the resale of the
Notes by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Offering Memorandum
in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading, to promptly notify the Initial Purchasers and prepare,
subject to the first sentence of this Section 3(a), such amendment or supplement as may be necessary to correct such untrue statement or omission.
(b) To furnish to the Initial Purchasers and to Cleary, Gottlieb, Steen & Hamilton, counsel to the Initial Purchasers, copies of the Preliminary Offering
Memorandum and the Offering Memorandum (and all amendments and supplements thereto), in each case as soon as available and in such quantities as the
Initial Purchasers reasonably requests for internal use and for distribution to prospective purchasers. The Company will pay the expenses of printing and
distributing to the Initial Purchasers all such documents.
(c) To promptly take such action as the Initial Purchasers may reasonably request from time to time, to qualify the Notes for offering and sale under the
securities laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions in the United States for as long as may be necessary to complete the resale of the Notes; provided, however, that in connection
therewith, the Company shall not be required to qualify to do business as a foreign corporation or otherwise subject itself to service of process or taxation in
any jurisdiction in which it is not otherwise so qualified or subject.
(d) To apply the net proceeds from the sale of the Notes as set forth under "Use of Proceeds" in the Offering Memorandum.
(e) Except for the offering of 1,200,000 shares of Common Stock and any additional shares of Common Stock issued pursuant to an underwriter's option
granted to the underwriters thereof, and except for the issuance of options pursuant to the Company's Stock Option Plans in the ordinary course of business
and the issuance of shares of Common Stock upon the exercise of outstanding options and warrants, for a period of 90 days from the date of the Offering
Memorandum, not to, directly or indirectly, offer for sale, sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any time in the future of), or announce an offering of any shares of Common Stock (other than the
Conversion Shares), or sell or grant options, rights or warrants with respect to any shares of Common Stock without the prior written consent of the
Representatives. In addition, if the Company files a registration statement (other than a Registration Statement) for the resale of shares of its Common Stock
during the 90 days from the date of the Offering Memorandum, the Company agrees that it will not request that the Commission declare such registration
statement effective during that period unless the Company is contractually obligated to do so.
(f) During the period of two years after the Delivery Date, not to, and not to permit any of its affiliates to, resell any Notes or Conversion Shares that
have been acquired by any of them.
(g) Not to, and not to permit any of its affiliates or any person acting on its behalf to, directly or indirectly, make offers or sales of any security, or solicit
offers to buy any security, under circumstances that would require the registration of the Notes or Conversion Shares under the Act.
(h) Not to, and not to permit any of its affiliates or any person acting on its behalf (other than the Initial Purchasers) to, engage in any form of general
solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Notes in the United States.
(i) To cause each of the Notes to bear, to the extent applicable, the legend contained in "Notice to Investors" in the Offering Memorandum for the time
period and upon the other terms stated therein, except after the Notes are resold pursuant to a registration statement effective under the Act.
(j) Between the date hereof and the Delivery Date, not to do or authorize any act or thing that would result in an adjustment of the Conversion Price (as
defined in the Indenture).
(k) For a period of two years from the Delivery Date, to take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall
become an "investment company" within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of
the Commission thereunder.