Overstock.com 2004 Annual Report Download - page 103

(m) The Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may
reasonably request to evidence compliance with the conditions set forth in this Section 5.
(n) The members of the board of directors of the Company and the executive officers of the Company shall have furnished to the Initial Purchasers "lock-
up" letters, covering a period of 60 days from the date of the Offering Memorandum, in form and substance satisfactory to the Initial Purchasers.
(o) All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory to counsel to the Initial Purchasers.
6. Representations, Warranties and Agreements of Initial Purchasers. Each Initial Purchaser represents and warrants, severally and not jointly, that it
is a Qualified Institutional Buyer. Each such Initial Purchaser, severally and not jointly, represents, warrants and agrees with the Company that:
(a) The Notes and the Conversion Shares have not been and will not be registered under the Act in connection with the initial offering of the Notes;
(b) The Initial Purchaser is purchasing the Notes pursuant to a private sale exemption from registration under the Act;
(c) The Notes have not been and will not be offered or sold by the Initial Purchaser or its affiliates acting on its behalf within the United States or to, or
for the account or benefit of, United States persons except in accordance with Rule 144A; and
(d) The Initial Purchaser will not offer or sell the Notes in the United States by means of any form of general solicitation or general advertising (as those
terms are used in Regulation D).
7. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each of the Initial Purchasers, and their respective directors, officers and employees and each
person, if any, who controls such Initial Purchaser within the meaning of the Act, from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Notes), to which such
Initial Purchaser, director, officer, employee or controlling person may become subject, under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon:
any untrue statement or alleged untrue statement of a material fact contained in (A) any Preliminary Offering Memorandum or the Offering
Memorandum, or in any amendment or supplement thereto, or (B) any materials or information provided to investors by, or with the
approval of, the Company in connection with the marketing of the offering of the Notes, including any roadshow or investor presentations
made to investors by the Company (whether in person or electronically), ("Marketing Materials") or
the omission or alleged omission to state therein any material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, or
any act or failure to act or any alleged act or failure to act by the Initial Purchasers in connection with, or relating in any manner to, the
Notes or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action
arising out of or based upon matters covered by clause (i) or (ii) above (provided that the Company shall not be liable under this
clause (iii) to the extent that it is determined in a final judgment by a court of competent jurisdiction that such loss, claim, damage, liability
or action resulted directly from any such acts or failure to act undertaken or omitted to be taken by the Initial Purchasers through its gross
negligence or willful misconduct),
and shall reimburse such Initial Purchaser and each such director, officer, employee and controlling person promptly upon demand for any legal or other
expenses reasonably incurred by such Initial Purchaser, director, officer, employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Offering Memorandum or the Offering Memorandum, or in any such amendment or
supplement, or in any Marketing Materials in reliance upon and in conformity with the written information furnished to the Company by or on behalf of the
Initial Purchasers specifically for inclusion therein which information consists solely of the information specified in Section 7(e) of this Agreement. The
foregoing indemnity agreement is in addition to any liability that the Company may otherwise have to any Initial Purchaser or to any officer, employee or
controlling person of that Initial Purchaser provided further, that the Company shall not be liable to any Initial Purchaser (or any of their directors, officers,
employees or controlling persons) under the indemnity agreement in this Section 7(a) to the extent, but only to the extent, that (1) such loss, claim, damage or
liability of such Initial Purchaser (or such director, officer, employee or controlling person) results from an untrue statement of a material fact or an omission
of a material fact contained in the Preliminary Offering Memorandum, which untrue statement or omission was completely corrected in the Offering
Memorandum and (2) the Company sustains the burden of proving that such Initial Purchaser sold the Notes to the person alleging such loss, claim, liability,
expense or damage without sending or giving, at or prior to written confirmation of such sale, a copy of the Offering Memorandum and (3) the Company had
previously furnished sufficient quantities of the Offering Memorandum to the Initial Purchasers within a reasonable amount of time prior to such sale, and
(4) such Initial Purchaser failed to deliver the Offering Memorandum, if required by law to have so delivered it, and such delivery would have been a
complete defense against the person asserting such loss, claim, liability, expense or damage. The foregoing indemnity agreement is in addition to any liability
that the Company may otherwise have to any Initial Purchaser or to any director, officer, employee or controlling person of that Initial Purchaser.
(b) Each Initial Purchasers shall, severally and not jointly, indemnify and hold harmless the Company, its officers and employees, each of its directors,
and each person, if any, who controls the Company within the meaning of the Act from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Company or any such director, officer or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon:
(i)
(ii)
(iii)