Overstock.com 2004 Annual Report Download - page 101

(l) Not to take, and not to permit any of its affiliates to take, directly or indirectly, any action which is designed to stabilize or manipulate, or which
constitutes or which might reasonably be expected to cause or result in stabilization or manipulation, of the price of any security of the Company in
connection with the offering of the Notes.
(m) To execute and deliver the Registration Rights Agreement (in form and substance satisfactory to the Initial Purchasers).
(n) To use its best efforts to assist the Initial Purchasers in arranging to cause the Notes to be accepted to trade in the PORTAL market ("PORTAL") of
the National Association of Securities Dealers, Inc. ("NASD").
(o) To use its best efforts to cause the Notes to be accepted for clearance and settlement through the facilities of DTC.
(p) To use its best efforts to have the Conversion Shares approved by the NASDAQ National Market for inclusion prior to the effectiveness of the
Registration Statement.
4. Expenses. Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is
terminated, the Company agrees to pay:
(a) the costs incident to the preparation, printing and distribution of the Preliminary Offering Memorandum, the Offering Memorandum and any
amendment or supplement to the Offering Memorandum, all as provided in this Agreement;
(b) the costs of producing and distributing the Operative Documents;
(c) the fees and expenses of Bracewell & Patterson, L.L.P. and PricewaterhouseCoopers LLP;
(d) the fees and expenses of qualifying the Notes under the securities laws of the several jurisdictions as provided in Section 3(c) and of preparing,
printing and distributing a blue sky memorandum (including reasonable related fees and expenses of counsel to the Initial Purchasers, not to exceed $5,000);
(e) all costs and expenses relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Notes,
including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered in connection with the road show;
(f) all fees and expenses incurred in connection with any rating of the Notes;
(g) the costs of preparing the Notes;
(h) all expenses and fees in connection with the application for inclusion of the Notes in the PORTAL market and the inclusion of the Conversion Shares
on the Nasdaq National Market;
(i) the fees and expenses (including fees and disbursements of counsel) of the Trustee, and the costs and charges of any registrar, transfer agent, paying
agent or conversion agent; and
(j) all other costs and expenses incident to the Company's performance of its obligations under this Agreement;
provided that, except as provided in this Section 4 and in Section 7, the Initial Purchasers shall pay their own costs and expenses, including the costs and
expenses of their counsel and any transfer taxes on the Notes which they may sell, and the expenses of advertising any offering of the Securities made
by the Initial Purchasers.
5. Conditions of the Initial Purchaser's Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy, when
made and on each Delivery Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to the Company prior to or on such Delivery Date that the Offering Memorandum or
any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material or omits to
state any fact which is material and necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering
Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated
thereby shall be reasonably satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Bracewell & Patterson, L.L.P. shall have furnished to the Initial Purchasers their written opinion, as counsel to the Company, addressed to the Initial
Purchasers and dated such Delivery Date, in substantially the form attached hereto as Exhibit A.
(d) The Initial Purchasers shall have received from Cleary, Gottlieb, Steen & Hamilton, counsel for the Initial Purchasers, such opinion or opinions,
addressed to the Initial Purchasers, dated such Delivery Date, with respect to the issuance and sale of the Notes, the Offering Memorandum and other related
matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(e) At the time of execution of this Agreement, the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter, in form and
substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are an independent
registered public accounting firm within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of