Exhibit
10.1


 


WAIVER


 


 


The undersigned identified below is the
investment manager (the “Investment Manager”) for  the holder, Odyssey America Reinsurance
Corporation, (the “Holder”) of 3.75% Convertible Senior Notes due 2011 (the “Senior
Notes”) issued by Overstock.com, Inc., a Delaware corporation (the “Company”).


 


For good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Investment Manager
hereby waives, on behalf of the Holder and its insurance subsidiaries, any right
it may have under Section 3.7(a) of the Indenture dated November 23, 2004
governing the Senior Notes (the “Indenture”) to require the Company to
repurchase any Senior Notes then held by Holder or any of its subsidiaries, or
to otherwise make any payment to the Holder or any insurance subsidiary of the
Holder pursuant to any Senior Notes then held by it or any of its insurance
subsidiaries, as a result of, or in connection with, the occurrence of any “Fundamental
Change” as defined in Section 3.7(a) of the Indenture, to the extent that such
Fundamental Change results solely from the acquisition by Patrick Byrne (“Patrick”)
and/or John Byrne (“John”) and/or immediate members of the Byrne family and/or
wholly-owned affiliates of Patrick or John (collectively, with Patrick and
John, the “Byrne Family”) of additional shares of the Company’s common stock or
the ownership by any or all of them of a number of shares sufficient to
constitute a “Fundamental Change” for purposes of the Indenture (the “Byrne
Acquisition Fundamental Change”). Notwithstanding the foregoing, this Waiver
shall be null and void to the extent that: (1) John is no longer a director of
the Company; (2) Patrick is no longer an executive officer of the Company; (3)
the individual or aggregate effect of the aforementioned Byrne Family
acquisitions constitute a going private transaction; (4) the Company is
delisted from Nasdaq; (5) the Company’s common stock becomes subject to any
cease trade, halt or freeze order that lasts for more than one trading day; or
(6) two years have passed from the date hereof.


 


As partial consideration for
the execution and delivery of this Waiver by the Holder, the Company hereby
agrees to (a) pay Holder $50,000 and (b) notify promptly the Holder and any
other holder of the Senior Notes who executes a substantially similar waiver of
any new offering of securities issued by the Company to the extent it can do so
without violating any law, rule or regulation and without unreasonably
jeopardizing the success of any planned transaction; provided, however, that
the obligation set forth in clause (b) expires on the earlier of (i) the
nullification of this Waiver; (ii) the closing of such offering, (iii) expiry
of the term of the Senior Notes, and (iv) the date on which Holder no longer
holds at least $10 million aggregate principal amount of the Senior Notes.


 


The Company agrees that this Waiver herein
shall within one business day be disclosed to the public by the Company filing
a Form 8-K with the Securities and Exchange Commission with this Waiver as an
exhibit thereto.


 

















 


By his execution below,
Patrick hereby confirms that (1) he has no current intention to acquire any
number of shares of common stock of the Company or otherwise take any action
that would result in the occurrence of the Byrne Acquisition Fundamental Change
and (2) he has no knowledge of any current intention on the part of any member
of the Byrne Family to acquire any number of shares of common stock of the
Company.


 


 


Holder:  HAMBLIN WATSA INVESTMENT COUNSEL LTD., in its
capacity as investment manager for Odyssey America Reinsurance Corporation


 


 


	
  By:

  	
  /s/ Paul Rivett

  	
   

  
	
  Name:

  	
  Paul Rivett

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  
	
  Dated: 

  	
  April 3, 2006

  	
   

  
	
   

  	
   

  	
   

  
	
  The Company:
  OVERSTOCK.COM, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Patrick M. Byrne

  	
   

  
	
  Name:

  	
  Patrick M. Byrne

  	
   

  
	
  Title:

  	
  President

  	
   

  
	
  Dated: 

  	
  April 3, 2006

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  PATRICK M. BYRNE

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Patrick M. Byrne

  	
   

  
	
  Dated:  

  	
  April 3, 2006

  	
   

  



 


 


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