Overstock.com 2004 Annual Report Download - page 104

any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Offering Memorandum or the Offering
Memorandum or in any amendment or supplement thereto, or in any Marketing Materials, or
the omission or alleged omission to state therein any material fact necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made 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 and described in
Section 7(e). The Initial Purchasers shall reimburse the Company and any such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer 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. The foregoing indemnity agreement is in addition to any liability which
any Initial Purchaser may otherwise have to the Company or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 7 of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the claim or
the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have
under this Section 7 except to the extent it has been materially prejudiced by such failure and, provided, further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 7. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this Section 7 for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that the Initial Purchasers shall have the right to
employ counsel to represent jointly the Initial Purchasers and their respective officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the Initial Purchasers against the Company under this Section 7 if, in the reasonable
judgment of the Initial Purchasers, it is advisable for the Initial Purchasers and those directors, officers, employees and controlling persons to be jointly
represented by separate counsel, and in that event the fees and expenses of such separate counsel shall be paid by the Company. No indemnifying party shall:
without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld or delayed) settle or
compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or
be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld or
delayed), but if settled with such consent of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall for any reason be unavailable or insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof:
in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and the Initial
Purchasers on the other from the offering of the Notes, or
if the allocation provided by clause 7(d)(i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 7(d)(i) but also the relative fault of the Company on the one hand and the Initial Purchasers on the
other with respect to the statements or omissions or alleged statements or alleged omissions that resulted in such loss, claim, damage or
liability (or action in respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Initial Purchasers on the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Notes purchased under this Agreement (before deducting expenses) received by the
Company on the one hand, and the total discounts and commissions received by the Initial Purchasers with respect to the Notes purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the offering of the Notes under this Agreement. The relative fault shall be determined by
reference to whether any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Initial Purchasers, the intent of the parties and their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Initial Purchasers agree that it would not be just and equitable if the amount of contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 7(d) shall be deemed to include, for
purposes of this Section 7(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7(d), no Initial Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes resold by it in the initial placement of such Notes were offered to investors exceeds the amount of any
damages which such Initial Purchaser has otherwise paid or become liable to pay by reason of the untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial Purchasers obligations to contribute as provided in this Section 7(d) are several in
proportion to their respective obligations and not joint.
(e) The Initial Purchasers severally confirm and the Company acknowledges that the statements with respect to the offering of the Notes (i) in the last
paragraph of the cover page of the Preliminary Offering Memorandum and the Offering Memorandum, (ii) in the 4th paragraph under the caption "Plan of
Distribution" in the Preliminary Offering Memorandum and the Offering Memorandum and (iii) the 1st paragraph under the caption "Plan of Distribution—
(i)
(ii)
(i)
(ii)
(i)
(ii)