Exhibit 10.19


REGISTRATION AND EXPENSES
AGREEMENT


THIS
REGISTRATION AND EXPENSES AGREEMENT (this “Agreement”) is made as of May 3, 2002 among
Overstock.com, Inc., a Delaware corporation (the “Company”)
and Amazon.com NV Investment Holdings, Inc. (the “Selling Stockholder”).


WHEREAS, the Company proposes to make an
underwritten initial public offering (the (“Offering”) of its common stock (“Common Stock”)
pursuant to a Registration Statement on Form S-1 (the “Registration Statement”) filed with the
Securities and Exchange Commission (the “SEC”).


WHEREAS, the Selling Stockholder owns 23,947,282
shares of Common Stock as appropriately adjusted to give effect to stock
splits, reverse stock splits, combinations, recapitalizations and similar
events (the “Shares”)
and is willing to sell all of the Shares in connection with the Offering.  The Shares are sometimes referred to herein
as “Registrable Securities.”


WHEREAS, the Company believes it is in the best
interests of the Company and its stockholders to include the Shares in the
Registration Statement because the sale of the Shares pursuant to the
Registration Statement will accomplish an orderly distribution of the Shares.


WHEREAS, the Company and the Selling Stockholder
propose to enter into an underwriting agreement (such agreement in the form in
which executed being herein called the “Underwriting Agreement”) with WR Hambrecht + Co.,
LLC (the “Underwriter”),
with respect to the Offering.


WHEREAS, concurrent with the execution of this
Agreement, the Selling Stockholder is entering into an Irrevocable Election to
Sell (the “Election to
Sell”), Irrevocable Power of Attorney (the “Power  of Attorney”) and a Custody Agreement
(the “Custody Agreement”
and together with the Election to Sell and the Power of Attorney, the “Related Agreements”).


WHEREAS, the Company is prepared to enter into
such Underwriting Agreement and this Agreement to provide for certain expenses
and commissions related to registration and sale of the Shares.


NOW, THEREFORE, in consideration of the mutual
covenants set forth herein, the parties agree as follows:


1.     Irrevocable Election to Sell.  The Selling Stockholder shall elect to
include and sell all of the Shares in the Registration Statement in accordance
with the terms and provisions of the Election to Sell, the Power of Attorney
and the Custody Agreement. The Company and the Selling Stockholder shall
perform their respective obligations under the Underwriting Agreement and the
Related Agreements.


2.     Representations and Warranties of the Selling Stockholder.  The Selling Stockholder hereby represents
and warrants to the Company as follows:


a.     The Selling Stockholder has good and
marketable title to all of the Shares, free and clear of all liens,
encumbrances, equities, security interests and claims whatsoever.  Certificates in 


 


 

















 


negotiable form for the Shares
to be sold by the Selling Stockholder have been placed in custody under the
Custody Agreement for delivery under the Underwriting Agreement with the
Custodian; the Selling Stockholder specifically agrees that the Shares
represented by the certificates so held in custody for the Selling Stockholder
will be subject to the interests of the Underwriter under the Underwriting
Agreement (if and when it is consummated), that the arrangements made by the
Selling Stockholder for such custody, including the Power of Attorney, are to
the extent specified in such documents, irrevocable, and that the obligations
of the Selling Stockholder under this Agreement or the Related Agreements shall
not be terminated by any act of the Selling Stockholder or by operation of law,
whether by the dissolution or liquidation of the Selling Stockholder or the
occurrence of any other event, except to the extent specified herein or in the
Related Agreements.


b.     The performance of this Agreement and the
Related Agreements and the consummation of the transactions herein and therein
contemplated will not result in a breach or violation of any agreement to which
the Selling Stockholder is a party or by which the Selling Stockholder is
bound, other than a breach or violation that would not have a material adverse
effect on the Selling Stockholder’s ability to perform its obligations under
this Agreement.


c.     The Selling Stockholder will not take,
directly or indirectly, any action which constitutes an unlawful stabilization
or manipulation of the price of sale of the Shares in the Offering.


d.     The Selling Stockholder has not distributed
any offering material in connection with the offering and sale of the Shares
other than any Preliminary Prospectus, the Prospectus, the Registration
Statement and other materials, if any, permitted by the Securities Act.


e.     This Agreement and the Related Agreements
have been duly authorized, executed and delivered by the Selling Stockholder
and are valid and binding obligations of the Selling Stockholder.


3.     Expenses.  The Company shall (a) be responsible
for and pay all Registration Expenses incurred in connection with the
registration to be effected pursuant to the Registration Statement and
(b) instruct the Underwriter to pay to the Selling Stockholder at the
closing of the Offering from the Company’s proceeds from the Offering an amount
equal to the Selling Expenses (the “Selling Expenses Payment”) and to pay to the
Selling Stockholder the reasonable expenses of one legal counsel to the Selling
Stockholder in connection with the legal opinion to be delivered by the Selling
Stockholder pursuant to the Underwriting Agreement (such amount not to exceed
$10,000).  For purposes of this
Section 1, (i) “Registration Expenses” shall mean all expenses that are
not Selling Expenses incurred in filing the Registration Statement and
complying herewith, including, without limitation, all registration, listing,
qualification and filing fees, printing expenses, fees and disbursements of
counsel for the Company, accounting fees and related expenses, blue sky fees
and all other expenses incident to or required by the registration contemplated
hereby and the consummation of the sales of Common Stock referred to in the
Registration Statement and (ii) “Selling Expenses” shall mean any underwriting fees,
discounts or commissions in connection with the sale of the Shares by the
Selling Stockholder to the Underwriter.


 


-2-

















 


4.     Offering.


a.     Selling Stockholder Election
to Sell.  Contemporaneous
with the execution of this Agreement, the Selling Stockholder has entered into
the Irrevocable Election to Sell pursuant to which (and subject to the terms of
this Agreement, the Underwriting Agreement and the Related Agreements) the
Selling Stockholder irrevocably agrees to sell all of the Shares in the
Offering, subject to the Price Term and the Share Term being satisfied or
waived in writing by the Selling Stockholder (and not pursuant to the Power of
Attorney) in strict compliance with Section 4.c. below.


For the purposes of this Agreement, “Price Term” shall
mean the proceeds to be received by the Selling Stockholder in connection with
the sale of the Shares in the Offering when added to the Selling Expenses
Payment equals or exceeds $10,000,000, and (b) “Share Term” shall mean all of the
Shares must be sold in the Offering. The Price Term and the Share Term are
referred together herein each as a “Selling Stockholder Condition” and
collectively as the “Selling
Stockholder Conditions.” Whether the Price Term and the Share
Term are satisfied shall be based exclusively upon the advice to the Company by
the Underwriter.


b.     Company Agreement to Register
the Shares.  The Company
agrees to register and include in the Offering all of the Shares, subject to
the Price Term and the Share Term being satisfied or waived in writing by the
Selling Stockholder (and not pursuant to the Power of Attorney) in strict
compliance with Section 4.c. below, and subject to the terms and conditions of
this Agreement, the Underwriting Agreement and the Related Agreements.


c.     Failure to Satisfy the
Selling Stockholder Conditions.   
If the Underwriter advises the Company that the Underwriter will not or
does not expect to be able to enter into the Underwriting Agreement on terms
that satisfy the Selling Stockholder Conditions, then the following provisions
shall apply:


(i)    Failure to Satisfy the Price Term.  If the Underwriter advises the Company that
it is not or does not expect to be able to enter into the Underwriting
Agreement on terms that  satisfy the
Price Term, then the Company shall promptly deliver to the Selling Stockholder
notice of such fact and of the price per share at which the Underwriter would
be willing to enter into the Underwriting Agreement, and the Selling
Stockholder shall have the opportunity to waive the Price Term and thereby
include the Shares in the Offering notwithstanding the failure to satisfy the
Price Term; provided, however, that (a) any such waiver shall be in writing,
and, to be effective, shall be provided to the Company prior to the later of
the Requested Effective Time (as defined in Section 4.d. below) and two hours
after the Selling Stockholder’s receipt of the forgoing notice, and (b) the
Selling Stockholder shall be deemed not to have waived the Price Term if no
waiver is received by the Company in writing prior to the Requested Effective
Time.   The Selling Stockholder
acknowledges and agrees that the Underwriter shall have no obligation to reduce
the number of shares to be sold in the Offering, even if such reduction would
reasonably be expected to increase the initial public offering price in the
Offering or otherwise result in the satisfaction of the Price Term.


(ii)   Failure to Satisfy the Share Term.  If the Underwriter advises the Company it is
not or does not expect to be able to enter into the Underwriting Agreement on
terms that satisfy the Share Term, then the Company shall promptly deliver to
the Selling Stockholder notice of such fact and of the aggregate number of
shares (the “Offering
Shares”) with respect to which the 


 


-3-

















 


Underwriter
is or expects to be able to enter into the Underwriting Agreement.  In such event, the Selling Stockholder shall
have the right to elect to sell a number of the Shares up to its “Pro Rata Share” of
the Offering Shares; provided, however, that (a) any such election shall be in
writing, shall state the exact number of Shares the Selling Stockholder elects
to sell in the offering, and, to be effective, shall be provided to the Company
prior to the later of the Requested Effective Time (as defined in Section 4.d.
below) and two hours after the Selling Stockholder’s receipt of the forgoing
notice, and (b) the Selling Stockholder shall be deemed not to have elected to
sell its Pro Rata Share if such election is not received by the Company in
writing prior to the Requested Effective Time. 
For purposes of this Section 4.d.(ii), “Pro Rata Share” shall mean the
quotient obtained by dividing (A) the number of Shares  by (B) the aggregate number of shares
indicated as being offered on the front cover page of the Company’s  preliminary “red herring” prospectus
distributed in connection with the Offering (excluding any shares to be sold
pursuant to an overallotment option).


d.     Process.  The Company shall promptly provide the
Selling Stockholder with written notice of its request to the Securities and
Exchange Commission (the “SEC”)
to accelerate the effectiveness of the Registration Statement (the “Acceleration Request”),
which notice shall indicate the date and time so requested (the “Requested Effective Time”).  For at least two days prior to the
Acceleration Request and through the Requested Effective Time, the Company
shall, and shall cause the Underwriter to, provide the Selling Stockholder with
regular (at least twice daily) updates of the status of the Offering, including
the status of information with respect to whether the Selling Stockholder
Conditions are expected to be satisfied, and shall instruct the Underwriter to
communicate with the Selling Stockholder regarding the status of the Offering
promptly following the Company giving notice pursuant to Section 4(c)(i) or
(ii).


5.     Underwriting
Agreement.  If the
Underwriter, the Company and the Selling Stockholder decide (through an attorney–in–fact
pursuant to the Power of Attorney or otherwise) to consummate the Offering by
entering into the Underwriting Agreement, the Company and the Selling
Stockholder agree that, except upon the written consent of the Selling
Stockholder: (a) the sections of the Underwriting Agreement relating to
representations and warranties of the Selling Stockholder and covenants of the
Selling Stockholder shall be identical to those contained in Sections 3 and 8
respectively of the form of underwriting agreement attached hereto as Exhibit
A (the “Draft
Underwriting Agreement”); (b) 
the indemnification and contribution terms of the Underwriting Agreement
provided for the benefit of the Selling Stockholder shall be the same as the
terms of Section 11 of the Draft Underwriting Agreement, to the extent such
terms relate to the indemnification and contribution rights or obligations of
the Selling Stockholder and (c) all other terms of the Underwriting Agreement
will not differ from those contained in the Draft Underwriting Agreement in a
manner that adversely affects or impairs the rights or increases the
obligations of the Selling Stockholder as set forth in the Draft Underwriting
Agreement.  The Selling Stockholder
agrees to be bound by an underwriting agreement that complies with the previous
three clauses.


6.     Selling Stockholder Disclosure.


a.             Approved Disclosure. Without the prior
written consent of the Selling Stockholder, the disclosure of the Selling
Stockholder in the Registration Statement and any amendments thereto (as well
as marketing presentations related to the Offering) shall be consistent with
the disclosures contained in the Registration Statement attached hereto as Exhibit
B (the “Approved 


 


-4-

















 


Disclosure”); provided, however, the Company shall
not be required to obtain such consent if the Company receives no response from
the Selling Stockholder within 24 hours of the Company’s written request for
such consent (provided that once the Company provides the Selling Stockholder
with the Notice of Effective Time, such consent must be received by the Company
as soon as reasonably practicable but in any event prior to the later of the
Requested Effective Time (as defined in Section 4.d. below) and two hours after
the Company provides the Selling Stockholder with the proposed language
change).


7.     Miscellaneous.


a.     Governing Law.  This
Agreement shall be governed by and construed under the internal laws of the
State of Delaware as applied to agreements among Delaware residents entered
into and to be performed entirely within Delaware without reference to
principles of conflict of laws or choice of laws.


b.     Third Party Beneficiaries. 
Notwithstanding anything to the contrary contained herein, no provision
of this Agreement is intended to benefit any party other than the parties to
this Agreement and their respective heirs, distributees, executors,
administrators, personal representatives, successors, and assigns, and no
provision shall be enforceable by any other party; provided, however, that the
Selling Stockholder may transfer and assign its rights and obligations under
this Agreement and the Related Agreements to a direct or indirect wholly-owned
subsidiary or direct or indirect parent.


c.     Confidentiality.  The Selling Stockholder shall not disclose
to any person or entity, without the prior approval of the Company, any
non-public information relating to the pricing and timing of the Offering
obtained by virtue of this Agreement. 
The Selling Stockholder hereby agrees and consents to the filing of this
Agreement as an exhibit to the Registration Statement and agrees that the
Company shall have no obligation to request or seek confidential treatment of
all or any portion thereof.


d.     Counterparts. 
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


e.     Headings.  The
headings and captions used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this Agreement.  All references in this Agreement to
sections, paragraphs, exhibits and schedules shall, unless otherwise provided,
refer to sections and paragraphs hereof and exhibits and schedules attached
hereto, all of which are incorporated herein by this reference.


f.      Severability.  If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision(s) shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision(s) were so
excluded and shall be enforceable in accordance with its terms to the maximum
extent possible.


g.     Entire Agreement. 
This Agreement, the Underwriting Agreement and the Related Agreements
constitute the entire understanding and agreement of the parties with respect
to the subject matter hereof and supersede all prior negotiations,
correspondence, agreements, understandings, duties or obligations among the
parties with respect to the subject matter hereof.


 


-5-

















 


h.     Termination.  This Agreement shall terminate and be of no
further force or effect if the Underwriting Agreement shall not be entered into
and the transactions contemplated thereby shall not be consummated prior to the
60th day after the date hereof, provided that Section 3(a) shall survive any
termination.


i.      Assignments.  This Agreement shall be binding upon and
inure to the benefit of the Company and the Selling Stockholder and their
respective permitted distributees, transferees, successors and assigns (as well
as any assignee, transferee or distributee of all or any portion of the
Shares).


j.      Further Assurances. 
From and after the date of this Agreement, upon the request of a party,
the other party shall execute and deliver such instruments, documents or other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.


k.     Notice.  All notices and communications hereunder
shall be in writing and delivered to the addresses specified on Exhibit C (as
at any time amended) by certified mail, overnight courier or facsimile.  Such notice or communication shall be deemed
delivered upon receipt if delivered by certified mail or overnight courier, and
shall be deemed delivered at its transmittal time if sent by facsimile provided
the party sending the facsimile communicates via telephone regarding the
delivery of the facsimile to the intended recipient.


l.      Power of Attorney.  Any action to be taken by the Selling
Stockholder under this Agreement, but not under the Related Agreements, shall
not be taken pursuant to the Power of Attorney.


 


[REMAINDER OF PAGE INTENTIALLY LEFT BLANK]


 


-6-

















 


IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.


 


	
   

  	
   

  	
  OVERSTOCK.COM,
  INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Patrick M. Byrne

  	
   

  
	
   

  	
   

  	
  Patrick M. Byrne

  	
   

  
	
   

  	
   

  	
  President and Chief Executive Officer

  	
   

  



 


	
   

  	
   

  	
  AMAZON.COM
  NV INVESTMENT HOLDINGS, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Reynaldo
  Sermonia

  	
   

  
	
   

  	
   

  	
  Signature of Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Vice President
  & Treasurer

  	
   

  
	
   

  	
   

  	
  Print Name and Title

  	
   

  



 


 


 


 


 


 


 


 


 


 


 


 


SIGNATURE PAGE TO REGISTRATION AND EXPENSES AGREEMENT