Exhibit 10.1


 


OVERSTOCK.COM, INC.

RESTRICTED STOCK UNIT GRANT NOTICE

(2005 Equity Incentive Plan)


 


Overstock.com, Inc.
(the “Company”), pursuant to its 2005 Equity Incentive Plan (the “Plan”),
hereby grants to the participant under the Plan (the “Participant”) restricted
stock units (“RSUs”) constituting the right to purchase the number of shares of
the Company’s common stock (the “Common Stock”) set forth below (the “Award”).
This Award is subject to all of the terms and conditions as set forth in this
Restricted Stock Unit Grant Notice (the “Grant Notice”), the Restricted Stock
Unit Agreement attached hereto and the Plan, a copy of which has previously
been furnished to the Participant, all of which are incorporated herein in
their entirety.


 


	
  Participant:

  	
   

  	
  [Name]

  	
   

  
	
  Date of Grant:

  	
   

  	
  [Date]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Number of Shares Subject to Award:

  	
   

  	
  [Number of Shares]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Purchase Price per Share:

  	
   

  	
  $0.0001

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Purchase Price:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Vesting Schedule:

  	
   

  	
  [Participant will vest in [vest percentage] of the RSUs awarded by
  this Agreement at the close of business on [date or dates], subject to the
  provisions of the Restricted Stock Unit Agreement attached hereto and the
  Plan.]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Payment:

  	
   

  	
  As described in the Restricted Stock Unit Agreement, the par value
  for the shares must be paid in cash, by check or as consideration for past
  services to the Company.

  	
   

  



 


Additional
Terms/Acknowledgements: The undersigned Participant acknowledges receipt of, and understands
and agrees to the terms and conditions of this Grant Notice, the Restricted
Stock Unit Agreement and the Plan, and agrees that his or her signature of this
Grant Notice shall also be deemed his or her signature of the attached
Restricted Stock Unit Agreement. 
Participant further acknowledges that as of the Date of Grant, this
Grant Notice, the Restricted Stock Unit Agreement and the Plan set forth the
entire understanding between Participant and the Company regarding the matters
addressed herein and therein and supersede all prior oral and written
agreements relating thereto, with the exception of any other awards previously
granted and delivered to Participant under the Plan.


 

















 


	
  Overstock.com, Inc.

  	
   

  	
  Participant:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


OVERSTOCK.COM, INC.

RESTRICTED STOCK UNIT AGREEMENT

(2005 Equity Incentive Plan)


 


1. Grant. The
Company hereby grants to the Participant named in the Restricted Stock Unit
Grant Notice attached hereto an award of Restricted Stock Units (“RSUs”), as
set forth in the Restricted Stock Unit Grant Notice and subject to the terms
and conditions in this Agreement and the Company’s 2005 Equity Incentive Plan
(the “Plan”). When the Shares are issued pursuant to RSUs which vest in
accordance with the terms hereof, the par value per Share will be deemed paid
by the Participant as a result of services rendered by the Participant prior to
the applicable vesting date.  Terms used
but not defined herein have the meanings given them in the Plan.


 


2. Company’s
Obligation. Each RSU represents the right to receive one Share on the
vesting date of that RSU. Unless and until the RSUs vest, the Participant will
have no right to receive any Shares under such RSUs. Prior to actual
distribution of Shares pursuant to any vested RSUs, such RSUs will represent an
unsecured obligation of the Company, payable (if at all) only from the general
assets of the Company.


 


3. Vesting Schedule.
Subject to paragraph 4, the Participant will vest in the RSUs awarded by this
Agreement according to the vesting schedule specified in the Restricted Stock
Unit Grant Notice. Accordingly, such vesting may be tied to the attainment of
established Performance Goals and/or the completion of a specified period of
Service Provider status.


 


4. Administrator Discretion.
The Administrator, in its discretion, may accelerate the vesting of any or all
of the RSUs at any time, subject to the terms of the Plan. If so accelerated,
such RSUs will be considered as having vested as of the date specified by the
Administrator. If the Administrator, in its discretion, accelerates the vesting
of any or all of the RSUs, the Shares underlying those accelerated RSUs shall
nevertheless be issued at the same time or times as if such RSUs had vested in
accordance with the vesting schedule set forth in the Restricted Stock Unit
Grant Notice (whether or not the Participant remains in Service Provider status
as of such date(s)). Accordingly, there shall be no acceleration of the
issuance date of the Shares underlying the RSUs for which vesting is
accelerated pursuant to this paragraph 4.


 


5. Forfeiture upon
Termination as Service Provider. Notwithstanding any contrary provision of
this Agreement or the Restricted Stock Unit Grant Notice, if the status of the
Participant as a Service Provider is terminated for any reason or no reason
prior to vesting, the unvested RSUs awarded by this Agreement will thereupon
terminate and be forfeited at no cost to the Company and without any payment
(in Shares, cash or otherwise) to the Participant.


 


6. Payment upon
Vesting. Any RSUs that vest in accordance with paragraph 3 will be paid to
the Participant (or in the event of the Participant’s death, to his or her
estate or designated beneficiaries) in Shares on the date those RSUs vest in
accordance with the vesting schedule set forth in the Restricted Stock Unit
Grant Notice or as soon thereafter as practicable, subject to the tax
withholding provisions of paragraph 8. Any RSUs that vest in accordance with
paragraph 4 will be paid in Shares to the Participant (or in the event of the
Participant’s death, to his or her estate or designated beneficiaries) in
accordance with the provisions of such paragraph, subject to tax withholding
provisions of paragraph 8. In the event of any accelerated vesting of the RSUs
pursuant to the provisions of Section 16(c)(ii) of the Plan, the
Shares underlying those accelerated RSUs shall be issued on the accelerated
vesting date or as soon thereafter as administratively practicable, subject to
the tax withholding provisions of paragraph 8. For each RSU that vests, the
Participant will receive one Share. In no event shall the Shares be issued
later than the later of (i) the close of the calendar year in which the
Shares vest or (for vesting-accelerated RSUs under paragraph 4) would have
vested in the 


 

















 


absence of such
acceleration or (ii) the fifteenth (15th) day of the third (3rd) calendar
month following such actual or deemed vesting date.  Notwithstanding anything herein to the
contrary, the Participant shall not be permitted, directly or indirectly, to
designate the taxable year in which the Shares shall be issued.


 


7. Payments after
Death. Any distribution or delivery of Shares to be made to the Participant
in accordance with the provisions of this Agreement will, if the Participant is
then deceased, be made to the administrator or executor of the Participant’s
estate or the designated beneficiary or beneficiaries of the RSUs. The Shares
shall be issued on the issuance date determined in accordance with the
provisions of paragraph 6. Any such administrator, executor or beneficiary must
furnish the Company with (a) written notice of his or her status as such
and (b) evidence satisfactory to the Company to establish the validity of
the transfer and compliance with any laws or regulations pertaining to said
transfer. The Participant may make a beneficiary designation with respect to
the RSUs by filing the appropriate form with the Administrator or its designate


 


8. Adjustment in
Shares. Should any event described in Section 16(a) of the Plan
occur, then equitable adjustments shall be made by the Administrator to the
total number and/or class of securities issuable pursuant to this Award as
permitted by the Plan. Such adjustments shall be made in such manner as the
Administrator deems appropriate so as to prevent dilution or enlargement of the
benefits intended to be made available hereunder.


 


9. Withholding of
Taxes. When the Shares are issued as payment for vested RSUs, the Company
will withhold a portion of the Shares that have an aggregate Fair Market Value
sufficient to pay the minimum federal, state and local income, employment and
any other applicable taxes required to be withheld by the Company, unless the
Company, in its sole discretion, either requires or otherwise permits the
Participant to make alternate arrangements satisfactory to the Company for such
withholdings in advance of the arising of any withholding obligations. The
number of Shares withheld pursuant to the prior sentence will be rounded up to
the nearest whole Share, with no cash payment due the Participant for the value
of any Share withheld in excess of the tax obligation as a result of such
rounding. Notwithstanding any contrary provision of this Agreement, no Shares
will be issued unless and until satisfactory arrangements (as determined by the
Company) have been made by the Participant with respect to the payment of any
income and other taxes which the Company determines must be withheld or
collected with respect to such Shares. In addition and to the maximum extent
permitted by law, the Company (or the employing Subsidiary) has the right to
retain without notice from salary or other amounts payable to the Participant,
cash having a sufficient value to satisfy any tax withholding obligations that
the Company determines cannot be satisfied through the withholding of otherwise
deliverable Shares. All income and other taxes related to the RSU award and any
Shares delivered in payment thereof are the sole responsibility of the
Participant. By accepting this RSU award, the Participant expressly consents to
the withholding of Shares and to any additional cash withholding as provided
for in this paragraph 9.


 


10. Rights as
Stockholder. Neither the Participant nor any person claiming under or
through the Participant will have any of the rights or privileges of a
stockholder of the Company in respect of any Shares deliverable hereunder
unless and until certificates representing such Shares are issued, recorded on
the records of the Company or its transfer agents or registrars, and delivered
to the Participant or Participant’s broker.


 


11. No Right to
Employment. The Participant’s employment or other Service Provider status
with the Company and its Subsidiaries is on an at-will basis only. Accordingly,
the terms of the Participant’s employment or other Service Provider status with
the Company and its Subsidiaries will be determined from time to time by the
Company or the Subsidiary employing or retaining the Participant (as the case
may be), and the Company or the Subsidiary will have the right, which is hereby
expressly reserved, to terminate or change the terms of the employment or
service relationship of the Participant at any time for any reason whatsoever,
with or without good cause or notice.


 

















 


12. Address
for Notices. Any notice to be given to the Company under the terms of this
Agreement must be addressed to the Company at 6350 South 3000 East, Salt Lake City, Utah 84121, Attn:
[Stock Administration], or at such other address as the Company may hereafter
designate in writing or electronically.


 


13. Grant Not
Transferable. Except to the limited extent provided in paragraph 7, this
grant and the rights and privileges conferred hereby shall not be transferred,
assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to sale under execution, attachment or
similar process. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of this grant, or any right or privilege conferred hereby, or
upon any attempted sale under any execution, attachment or similar process,
this grant and the rights and privileges conferred hereby immediately will
become null and void.


 


14. Restrictions on
Sale of Securities. Subject to the provisions of paragraph 16, the Company
shall use its reasonable efforts to assure that the offering of Shares to be
issued in payment of the vested RSUs is registered under the federal securities
laws or qualifies for an available exemption from such registration
requirements. However, any sale of any Shares by the Participant will be
subject to the Company’s Insider Trading Policy as amended from time to time
and any other policies adopted by the Company relating to the sale of Company
Common Stock and any market blackout-period that may be imposed by the
Company.  Further, the Participant is
solely responsible for ensuring that any sale complies with all applicable
securities laws.


 


15. Binding Agreement.
Subject to the limitation on the transferability of this grant contained
herein, this Agreement will be binding upon and inure to the benefit of the
heirs, legatees, legal representatives, successors and assigns of the parties
hereto.


 


16. Additional
Conditions to Issuance of Stock. If at any time the Company determines, in
its discretion, that the listing, registration or qualification of the Shares
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental regulatory authority is necessary or desirable
as a condition to the issuance of Shares to the Participant (or his or her
estate or beneficiary), such issuance will not occur unless and until such
listing, registration, qualification, consent or approval have been effected or
obtained, free of any conditions not acceptable to the Company. The Company
will make all reasonable efforts to meet the requirements of any such state or
federal law or securities exchange and to obtain any such consent or approval
of any such governmental authority. In no event, however, shall any Shares be
issued in contravention of applicable federal and state securities laws or
other regulatory requirements.


 


17. Plan Governs.
This Agreement and the Restricted Stock Unit Grant Notice are subject to all
terms and provisions of the Plan. In the event of a conflict between one or
more provisions of this Agreement or the Restricted Stock Unit Grant Notice and
one or more provisions of the Plan, the provisions of the Plan will govern.


 


18. Administrator
Authority. The Administrator will have the power to interpret the Plan and
this Agreement and the Restricted Stock Unit Grant Notice and to adopt such rules for
the administration, interpretation and application of the Plan as are
consistent therewith and to interpret or revoke any such rules (including,
but not limited to, the determination of whether or not any RSUs have vested).
All actions taken and all interpretations and determinations made by the
Administrator in good faith will be final and binding upon Participant, the
Company and all other persons. No member of the Administrator will be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan, the Restricted Stock Unit Grant Notice or this
Agreement.


 

















 


19. Captions.
Captions provided herein are for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.


 


20. Agreement
Severable. In the event that any provision in this Agreement will be held
invalid or unenforceable, such provision will be severable from, and such
invalidity or unenforceability will not be construed to have any effect on, the
remaining provisions of this Agreement.


 


21. Modifications to
the Agreement. This Agreement constitutes the entire understanding of the
parties regarding the subjects covered. The Participant expressly warrants that
he or she is not accepting this Agreement in reliance on any promises,
representations, or inducements other than those contained herein.
Modifications to this Agreement or the Plan can be made only in an express written
contract executed by a duly authorized officer of the Company. Notwithstanding
anything to the contrary in the Plan or this Agreement, the Company reserves
the right to amend this Agreement as it deems necessary or advisable, in its
sole discretion and without the consent of the Participant, to comply with
applicable law, including without limitation Section 409A of the Code or
to otherwise avoid imposition of any additional tax or income recognition under
Section 409A of the Code prior to the actual payment of Shares pursuant to
this RSU award.


 


22. Amendment,
Suspension or Termination of the Plan. By accepting this RSU award, the
Participant expressly warrants that he or she has received a right to purchase
stock under the Plan, and has received, read and understood a description of
the Plan. The Participant understands that the Plan is discretionary in nature
and may be modified, suspended or terminated by the Company at any time.


 


23. Electronic
Delivery. The Company may, in its sole discretion, decide to deliver any
notices required or permitted hereunder or under the Plan and any documents
related to RSUs awarded under the Plan or future RSUs that may be awarded under
the Plan by electronic means or request the Participant’s consent to participate
in the Plan by electronic means. By accepting this RSU award, the Participant
hereby consents to receive such documents by electronic delivery and agrees to
participate in the Plan through an on-line or electronic system established and
maintained by the Company or another third party designated by the Company.


 


24. Notice of
Governing Law. This RSU award shall be governed by, and construed in
accordance with, the laws of the State of Utah without regard to principles of
conflict of laws.


 


25. Section 409A.  
Payments under this Agreement are intended to be exempt from, or comply with,
the provisions of Section 409A of the Internal Revenue Code of 1986 (“Section 409A”)
and this Agreement shall be administered and construed accordingly. If any
payment, compensation or other benefit provided to the Participant in
connection with his or her employment termination is determined, in whole
or in part, to constitute “nonqualified deferred compensation” within the
meaning of Section 409A and the Participant is a specified employee
as defined in Section 409A(2)(B)(i), no part of such payments shall be
paid before the day that is six (6) months plus one (1) day after the
date of termination (the “New Payment Date”). The aggregate of any payments
that otherwise would have been paid to the Participant during the period
between the date of termination and the New Payment Date shall be paid to
the Participant in a lump sum on such New Payment Date.