Overstock.com 2009 Annual Report Download - page 49

Table of Contents
Recent sales of unregistered securities
In June 2009, we discovered that we had inadvertently issued 203,737 more shares of our common stock in connection with our 401(k) plan than had
been registered with the Securities and Exchange Commission for offer in connection with the 401(k) plan. These shares were contributed to or otherwise
acquired by participants in the 401(k) plan between August 16, 2006, and June 17, 2009. As a result, certain participants in the 401(k) plan may have or have
had rescission rights relating to the unregistered shares, although we believe that the federal statute of limitations applicable to any such rescission rights
would be one year, and that the statute of limitations had already expired at June 30, 2009 with respect to most of the inadvertent issuances. At December 31,
2009, approximately 65,000 shares or $744,000 of our common stock plus interest were classified outside stockholders' equity because of the potential
rescission rights.
On August 31, 2009, we entered into a Tolling and Standstill Agreement (the "Agreement") with the Overstock.com, Inc. Employee Benefits Committee
(the "Committee") relating to the Overstock.com, Inc. 401(k) plan (the "Plan"). We entered into the Agreement in order to preserve certain rights, if any, of
Plan participants who acquired shares of our common stock in the Plan between July 1, 2008 and June 30, 2009.
We intend to make a rescission offer to affected participants in the Plan who acquired shares of our common stock between July 1, 2008 and June 30,
2009, subject to compliance with applicable regulatory requirements.
Based on the closing price of our common stock of $13.56 at December 31, 2009, we anticipate that of the $744,000 of affected stock, it would be
uneconomical for participants to attempt to rescind their acquisitions of more than $169,000 of the stock.
In December 2009, we implemented a Non Qualified Deferred Compensation plan for senior management. The plan allows eligible members of senior
management to defer their receipt of compensation from us beginning in 2010, subject to the restrictions contained in the plan. To the extent that interests in
the plan constitute securities, we believe that the issuance of the interests was exempt from the registration requirements of the Securities Act of 1933, as
amended, pursuant to Section 4(2) thereof and Rule 506 of Regulation D thereunder as a transaction not involving a public offering. The interests were not
sold for cash or other consideration, and there were no proceeds to us.
Issuer purchases of equity securities
The following table sets forth all purchases made by us or on our behalf or any "affiliated purchaser" as defined in Rule 10b-18(a)(3) under the Exchange
Act, of shares of our common stock made during each month within the fourth quarter of 2009, including all purchases made pursuant to publicly announced
plans or programs and those not made pursuant to publicly announced plans or programs. Column (a) sets forth the total number of shares purchased, and the
footnotes to the table disclose the number of shares purchased other than pursuant to a publicly announced plan or program and the nature of any such
purchases. Column (b) sets forth the average price paid per share. Column (c) sets forth the total number of shares purchased as part of publicly announced
repurchase plans or programs. Column (d) sets forth the maximum number (or approximate dollar value) of shares that may yet be purchased under the plans
or programs.
The footnotes to the table indicate the date each plan or program was announced, the dollar amount or share amount approved, the expiration date, if any,
of each plan or program, each plan or program that has expired during the period covered by the table, and each plan or program we have
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