EXHIBIT 10.1


OVERSTOCK.COM, INC.


 


INDEMNIFICATION AGREEMENT


 


 


THIS
AGREEMENT (the “Agreement”) is made
and entered into as of ________, 2002, by and between Overstock.com, Inc., a
Delaware corporation (the “Company”),
and [____________] (“Indemnitee”).


RECITALS


WHEREAS, Indemnitee performs a valuable service
for the Company; and


WHEREAS, the Board of Directors of the Company
has adopted Bylaws (the “Bylaws”)
providing for the indemnification of the officers and directors of the Company
to the maximum extent authorized by Section 145 of the Delaware General
Corporation Law, as amended (“Delaware Law”); and


WHEREAS, the Bylaws and Delaware Law, by their
nonexclusive nature, permit contracts between the Company and the officers or
directors of the Company with respect to indemnification of such officers or
directors; and


WHEREAS, in accordance with the authorization as
provided by Delaware Law, the Company may purchase and maintain a policy or
policies of directors’ and officers’ liability insurance (“D & O Insurance”),
covering certain liabilities which may be incurred by its officers or directors
in the performance of their obligations to the Company; and


WHEREAS, in order to induce Indemnitee to
continue to serve as an officer or director of the Company, the Company has
determined and agreed to enter into this contract with Indemnitee;


NOW,
THEREFORE, in
consideration of Indemnitee’s service as an officer or director after the date
hereof, the parties hereto agree as follows:


1.             Indemnity of Indemnitee.  The Company hereby agrees to hold harmless
and indemnify Indemnitee to the full extent authorized or permitted by the
provisions of Delaware Law, as such may be amended from time to time, and the
Bylaws, as such may be amended.  In
furtherance of the foregoing indemnification, and without limiting the
generality thereof:


(a)           Proceedings Other Than Proceedings
by or in the Right of the Company. 
Indemnitee shall be entitled to the rights of indemnification provided
in this Section l(a) if, by reason of his Corporate Status (as hereinafter
defined), he is, or is threatened to be made, a party to or participant in any
Proceeding (as hereinafter defined) other than a Proceeding by or in the right
of the Company.  Pursuant to this
Section 1(a), Indemnitee shall be indemnified against all Expenses (as
hereinafter defined), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf in


 

















connection with such Proceeding or any claim, issue or
matter therein, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and, with
respect to any criminal Proceeding, had no reasonable cause to believe his
conduct was unlawful.


(b)           Proceedings by or in the Right of
the Company.  Indemnitee shall be
entitled to the rights of indemnification provided in this Section 1(b) if, by
reason of his Corporate Status, he is, or is threatened to be made, a party to
or participant in any Proceeding brought by or in the right of the
Company.  Pursuant to this Section 1(b),
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company; provided,
however, that, if applicable law so provides, no indemnification
against such Expenses shall be made in respect of any claim, issue or matter in
such Proceeding as to which Indemnitee shall have been adjudged to be liable to
the Company unless and to the extent that the Court of Chancery of the State of
Delaware shall determine that such indemnification may be made.


(c)           Indemnification for Expenses of a
Party Who is Wholly or Partly Successful. 
Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified to the maximum extent permitted by law against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith.  If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such Proceeding,
the Company shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. 
For purposes of this Section and without limitation, the termination of
any claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.


2.             Additional Indemnity.  In addition to, and without regard to any limitations on, the
indemnification provided for in Section 1, the Company shall and hereby does
indemnify and hold harmless Indemnitee against all Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf if, by reason of his Corporate Status, he is,
or is threatened to be made, a party to or participant in any Proceeding
(including a Proceeding by or in the right of the Company), including, without
limitation, all liability arising out of the negligence or active or passive
wrongdoing of Indemnitee.  The only
limitation that shall exist upon the Company’s obligations pursuant to this
Agreement shall be that the Company shall not be obligated to make any payment
to Indemnitee that is finally determined (under the procedures, and subject to
the presumptions, set forth in Sections 6 and 7 hereof) to be unlawful under
Delaware law.


3.             Contribution in the Event of
Joint Liability.


(a)           Whether or not the indemnification
provided in Section 1 and Section 2 above is available, in respect of any
threatened, pending or completed action, suit or proceeding in which Company is
jointly liable with Indemnitee (or would be if joined in such


 


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action, suit or proceeding), Company shall pay, in the
first instance, the entire amount of any judgment or settlement of such action,
suit or proceeding without requiring Indemnitee to contribute to such payment
and Company hereby waives and relinquishes any right of contribution it may
have against Indemnitee.  Company shall
not enter into any settlement of any action, suit or proceeding in which
Company is jointly liable with Indemnitee (or would be if joined in such action,
suit or proceeding) unless such settlement provides for a full and final
release of all claims asserted against Indemnitee.


(b)           Without diminishing or impairing the
obligations of the Company set forth in the preceding subparagraph, if, for any
reason, Indemnitee shall elect or be required to pay all or any portion of any
judgment or settlement in any threatened, pending or completed action, suit or
proceeding in which Company is jointly liable with Indemnitee (or would be if
joined in such action, suit or proceeding), Company shall contribute to the
amount of expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred and paid or payable by
Indemnitee in proportion to the relative benefits received by the Company and
all officers, directors or employees of the Company other than Indemnitee who
are jointly liable with Indemnitee (or would be if joined in such action, suit
or proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction
from which such action, suit or proceeding arose; provided, however, that the
proportion determined on the basis of relative benefit may, to the extent
necessary to conform to law, be further adjusted by reference to the relative
fault of Company and all officers, directors or employees of the Company other
than Indemnitee who are jointly liable with Indemnitee (or would be if joined
in such action, suit or proceeding), on the one hand, and Indemnitee, on the
other hand, in connection with the events that resulted in such expenses,
judgments, fines or settlement amounts, as well as any other equitable
considerations which the law may require to be considered.  The relative fault of Company and all
officers, directors or employees of the Company other than Indemnitee who are
jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, shall be
determined by reference to, among other things, the degree to which their actions
were motivated by intent to gain personal profit or advantage, the degree to
which their liability is primary or secondary, and the degree to which their
conduct is active or passive.


(c)           Company hereby agrees to fully
indemnify and hold Indemnitee harmless from any claims of contribution which
may be brought by officers, directors or employees of the Company other than
Indemnitee who may be jointly liable with Indemnitee.


4.             Indemnification for Expenses of a Witness.  Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate Status,
a witness in any Proceeding to which Indemnitee is not a party, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith.


5.             Advancement of Expenses.  Notwithstanding any other provision of this
Agreement, the Company shall advance all Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate
Status within 10 days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding.  Such statement or statements shall
reasonably evidence the Expenses incurred by


 


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Indemnitee and shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses.  Any advances and undertakings to repay pursuant to this Section 5
shall be unsecured and interest free. 
Notwithstanding the foregoing, the obligation of the Company to advance
Expenses pursuant to this Section 5 shall be subject to the condition that, if,
when and to the extent that the Company determines that Indemnitee would not be
permitted to be indemnified under applicable law, the Company shall be entitled
to be reimbursed, within 30 days of such determination, by Indemnitee (who
hereby agrees to reimburse the Company) for all such amounts theretofore paid;
provided, however, that if Indemnitee has commenced or thereafter commences
legal proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under applicable law, any
determination made by the Company that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and Indemnitee shall not
be required to reimburse the Company for any advance of Expenses until a final
judicial determination is made with respect thereto (as to which all rights of
appeal therefrom have been exhausted or lapsed).


6.             Procedures and Presumptions for Determination of
Entitlement to Indemnification.  It
is the intent of this Agreement to secure for Indemnitee rights of indemnity
that are as favorable as may be permitted under the law and public policy of
the State of Delaware.  Accordingly, the
parties agree that the following procedures and presumptions shall apply in the
event of any question as to whether Indemnitee is entitled to indemnification
under this Agreement:


(a)           To obtain indemnification (including,
but not limited to, the advancement of Expenses and contribution by the
Company) under this Agreement, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and information as
is reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification.  The Secretary of the Company shall, promptly
upon receipt of such a request for indemnification, advise the Company’s Board
of Directors in writing that Indemnitee has requested indemnification.


(b)           Upon written request by Indemnitee
for indemnification pursuant to the first sentence of Section 6(a) hereof, a
determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case by one of the following
three methods, which shall be at the election of Indemnitee:  (i) by a majority vote of the disinterested
directors, even though less than a quorum, or (ii) by independent legal counsel
in a written opinion, or (iii) by the stockholders.


(c)           If the determination of entitlement
to indemnification is to be made by Independent Counsel pursuant to Section
6(b) hereof, the Independent Counsel shall be selected as provided in this
Section 6(c).  The Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board of Directors). 
Indemnitee or the Company, as the case may be, may, within 10 days after
such written notice of selection shall have been given, deliver to the Company
or to Indemnitee, as the case may be, a written objection to such selection;
provided, however, that such objection may


 


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be asserted only on the ground that the Independent
Counsel so selected does not meet the requirements of “Independent Counsel” as
defined in Section 13 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion.  Absent a proper and timely objection, the person so selected
shall act as Independent Counsel.  If a
written objection is made and substantiated, the Independent Counsel selected
may not serve as Independent Counsel unless and until such objection is
withdrawn or a court has determined that such objection is without merit.  If, within 20 days after submission by
Indemnitee of a written request for indemnification pursuant to Section 6(a)
hereof, no Independent Counsel shall have been selected and not objected to,
either the Company or Indemnitee may petition the Court of Chancery of the
State of Delaware or other court of competent jurisdiction for resolution of
any objection which shall have been made by the Company or Indemnitee to the
other’s selection of Independent Counsel or for the appointment as Independent
Counsel of a person selected by the court or by such other person as the court
shall designate, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel under
Section 6(b) hereof.  The Company shall
pay any and all reasonable fees and expenses of Independent Counsel incurred by
such Independent Counsel in connection with acting pursuant to Section 6(b)
hereof, and the Company shall pay all reasonable fees and expenses incident to
the procedures of this Section 6(c), regardless of the manner in which such
Independent Counsel was selected or appointed.


(d)           In making a determination with
respect to entitlement to indemnification hereunder, the person or persons or
entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for
indemnification in accordance with Section 6(a) of this Agreement.  Anyone seeking to overcome this presumption
shall have the burden of proof and the burden of persuasion, by clear and
convincing evidence.


(e)           Indemnitee shall be deemed to have
acted in good faith if Indemnitee’s action is based on the records or books of
account of the Enterprise, including financial statements, or on information
supplied to Indemnitee by the officers of the Enterprise in the course of their
duties, or on the advice of legal counsel for the Enterprise or on information
or records given or reports made to the Enterprise by an independent certified
public accountant or by an appraiser or other expert selected with reasonable
care by the Enterprise.  In addition,
the knowledge or actions, or failure to act, of any director, officer, agent or
employee of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.  Whether or not the foregoing provisions of
this Section 6(e) are satisfied, it shall in any event be presumed that
Indemnitee has at all times acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company.  Anyone seeking to overcome this presumption
shall have the burden of proof and the burden of persuasion, by clear and convincing
evidence.


(f)            If the person, persons or entity
empowered or selected under Section 6 to determine whether Indemnitee is
entitled to indemnification shall not have made a determination within 30 days
after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee’s statement not


 


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materially misleading, in connection with the request
for indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however,
that such 30-day period may be extended for a reasonable time, not to exceed an
additional 15 days, if the person, persons or entity making the determination
with respect to entitlement to indemnification in good faith requires such
additional time for the obtaining or evaluating documentation or information
relating thereto; and provided, further,
that the foregoing provisions of this Section 6(g) shall not apply if the
determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 6(b) of this Agreement and if (A) within 15
days after receipt by the Company of the request for such determination the
Board of Directors or the Disinterested Directors, if appropriate, resolve to
submit such determination to the stockholders for their consideration at an
annual meeting thereof to be held within 75 days after such receipt and such
determination is made thereat, or (B) a special meeting of stockholders is
called within 15 days after such receipt for the purpose of making such
determination, such meeting is held for such purpose within 60 days after
having been so called and such determination is made thereat.


(g)           Indemnitee shall cooperate with the
person, persons or entity making such determination with respect to
Indemnitee’s entitlement to indemnification, including providing to such
person, persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination.  Any Independent Counsel,
member of the Company’s Board of Directors, or stockholder of the Company shall
act reasonably and in good faith in making a determination under the Agreement
of the Indemnitee’s entitlement to indemnification.  Any costs or expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the person,
persons or entity making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee’s entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.


(h)           The Company acknowledges that a
settlement or other disposition short of final judgment may be successful if it
permits a party to avoid expense, delay, distraction, disruption and
uncertainty.  In the event that any
action, claim or proceeding to which Indemnitee is a party is resolved in any
manner other than by adverse judgment against Indemnitee (including, without
limitation, settlement of such action, claim or proceeding with or without
payment of money or other consideration) it shall be presumed that Indemnitee
has been successful on the merits or otherwise in such action, suit or
proceeding.  Anyone seeking to overcome
this presumption shall have the burden of proof and the burden of persuasion,
by clear and convincing evidence.


7.             Remedies of Indemnitee.


(a)           In the event that (i) a determination
is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled
to indemnification under this Agreement, (ii) advancement of Expenses is
not timely made pursuant to Section 5 of this Agreement, (iii) no determination
of entitlement to indemnification shall have been made pursuant to Section 6(b)
of this Agreement within 90 days after receipt by the Company of the request
for indemnification, (iv) payment of indemnification is not made pursuant to
this Agreement within 10 days after receipt by the Company of a written request
therefor, or (v) payment of indemnification is not


 


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made within 10 days after a determination has been
made that Indemnitee is entitled to indemnification or such determination is
deemed to have been made pursuant to Section 6 of this Agreement, Indemnitee shall
be entitled to an adjudication in an appropriate court of the State of
Delaware, or in any other court of competent jurisdiction, of his entitlement
to such indemnification.  Indemnitee
shall commence such proceeding seeking an adjudication within 180 days
following the date on which Indemnitee first has the right to commence such
proceeding pursuant to this Section 7(a). 
The Company shall not oppose Indemnitee’s right to seek any such
adjudication.


(b)           In the event that a determination
shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee
is not entitled to indemnification, any judicial proceeding commenced pursuant
to this Section 7 shall be conducted in all respects as a de novo trial, on the merits
and Indemnitee shall not be prejudiced by reason of that adverse determination
under Section 6(b).


(c)           If a determination shall have been
made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section 7, absent a prohibition
of such indemnification under applicable law.


(d)           In the event that Indemnitee,
pursuant to this Section 7, seeks a judicial adjudication of his rights under,
or to recover damages for breach of, this Agreement, or to recover under any
directors’ and officers’ liability insurance policies maintained by the Company
the Company shall pay on his behalf, in advance, any and all expenses (of the
types described in the definition of Expenses in Section 13 of this Agreement)
actually and reasonably incurred by him in such judicial adjudication,
regardless of whether Indemnitee ultimately is determined to be entitled to
such indemnification, advancement of expenses or insurance recovery.


(e)           The Company shall be precluded from
asserting in any judicial proceeding commenced pursuant to this Section 7 that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court that the Company is bound by
all the provisions of this Agreement.


8.             Non–Exclusivity; Survival
of Rights; Insurance; Subrogation.


(a)           The rights of indemnification as
provided by this Agreement shall not be deemed exclusive of any other rights to
which Indemnitee may at any time be entitled under applicable law, the
certificate of incorporation of the Company, the Bylaws, any agreement, a vote
of stockholders or a resolution of directors, or otherwise.  No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his Corporate Status prior to such amendment, alteration or
repeal.  To the extent that a change in
Delaware Law, whether by statute or judicial decision, permits greater
indemnification than would be afforded currently under the Bylaws and this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy
by this Agreement the greater benefits so afforded by such change.  No right or remedy herein conferred is
intended to be exclusive of any other right or


 


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remedy, and every other right and remedy shall be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.


(b)           To the extent that the Company
maintains an insurance policy or policies providing liability insurance for
directors, officers, employees, or agents or fiduciaries of the Company or of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which such person serves at the request of the Company,
Indemnitee shall be covered by such policy or policies in accordance with its
or their terms to the maximum extent of the coverage available for any such
director, officer, employee or agent under such policy or policies.


(c)           In the event of any payment under
this Agreement, the Company shall be subrogated to the extent of such payment
to all of the rights of recovery of Indemnitee, who shall execute all papers
required and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring
suit to enforce such rights.


(d)           The Company shall not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable hereunder
if and to the extent that Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.


9.             Exception to Right of Indemnification.  Notwithstanding any other provision of this
Agreement, Indemnitee shall not be entitled to indemnification under this
Agreement with respect to any Proceeding brought by Indemnitee, or any claim
therein, unless (a) the bringing of such Proceeding or making of such claim
shall have been approved by the Board of Directors of the Company or (b) such
Proceeding is being brought by the Indemnitee to assert, interpret or enforce
his rights under this Agreement.


10.           Duration of Agreement.  All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee is an officer or
director of the Company (or is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise) and shall continue thereafter so long
as Indemnitee shall be subject to any Proceeding (or any proceeding commenced
under Section 7 hereof) by reason of his Corporate Status, whether or not he is
acting or serving in any such capacity at the time any liability or expense is
incurred for which indemnification can be provided under this Agreement.  This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
or assets of the Company), assigns, spouses, heirs, executors and personal and
legal representatives.  This Agreement shall
continue in effect regardless of whether Indemnitee continues to serve as an
officer or director of the Company or any other Enterprise at the Company’s
request.


 


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11.           Security.  To the extent requested by the Indemnitee
and approved by the Company’s Board of Directors, the Company may at any time
and from time to time provide security to the Indemnitee for the Company’s
obligations hereunder through an irrevocable bank line of credit, funded trust or
other collateral.  Any such security,
once provided to the Indemnitee, may not be revoked or released without the
prior written consent of the Indemnitee.


12.           Enforcement.


(a)           The Company expressly confirms and
agrees that it has entered into this Agreement and assumed the obligations
imposed on it hereby in order to induce Indemnitee to serve as an officer or
director of the Company, and the Company acknowledges that Indemnitee is
relying upon this Agreement in serving as an officer or director of the Company.


(b)           This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof.


13.           Definitions.  For purposes of this Agreement:


(a)           “Corporate Status” describes the status of a
person who is or was a director, officer, employee or agent or fiduciary of the
Company or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person is or was serving
at the express written request of the Company.


(b)           “Disinterested Director” means a director of
the Company who is not and was not a party to the Proceeding in respect of
which indemnification is sought by Indemnitee.


(c)           “Enterprise” shall mean the Company and any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise of which Indemnitee is or was serving at the express written
request of the Company as a director, officer, employee, agent or fiduciary.


(d)           “Expenses” shall include all reasonable
attorneys’ fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other disbursements
or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, participating, or
being or preparing to be a witness in a Proceeding.


(e)           “Independent Counsel” means a law firm, or a
member of a law firm, that is experienced in matters of corporation law and
neither presently is, nor in the past five years has been, retained to represent:  (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters concerning
the Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements), or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. 
Notwithstanding 


 


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the foregoing, the term “Independent Counsel” shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee’s rights under this
Agreement.  The Company agrees to pay
the reasonable fees of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant
hereto.


(f)            “Proceeding” includes any threatened,
pending or completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought by or in the right of the
Company or otherwise and whether civil, criminal, administrative or
investigative, in which Indemnitee was, is or will be involved as a party or
otherwise, by reason of the fact that Indemnitee is or was a director of the
Company, by reason of any action taken by him or of any inaction on his part
while acting as an officer or director of the Company, or by reason of the fact
that he is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other
Enterprise; in each case whether or not he is acting or serving in any such
capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement; including one pending on
or before the date of this Agreement; and excluding one initiated by an
Indemnitee pursuant to Section 7 of this Agreement to enforce his rights under
this Agreement.


14.           Severability.  If any provision or provisions of this
Agreement shall be held by a court of competent jurisdiction to be invalid,
void, illegal or otherwise unenforceable for any reason whatsoever: (a) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitation, each portion of any section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby and shall remain enforceable to the
fullest extent permitted by law; and (b) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each portion of
any section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested thereby.


15.           Modification and Waiver.  No supplement, modification, termination or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto.  No waiver of any
of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.


16.           Notice By Indemnitee.  Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification covered hereunder.  The failure to so notify the Company shall
not relieve the Company of any obligation which it may have to the Indemnitee
under this Agreement or otherwise unless and only to the extent that such
failure or delay materially prejudices the Company.


 


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17.           Notices.  All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (a) delivered by hand and receipted for by the party to whom
said notice or other communication shall have been directed, or (b) mailed
by certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:


(a)           If to Indemnitee, to the address set
forth below Indemnitee signature hereto.


(b)                                 If to the Company, to:


 


Overstock.com,
Inc.


6322 South 3000
East, Suite 100


Salt Lake City,
Utah 84121


Attention:
Secretary


 


or to such other address
as may have been furnished to Indemnitee by the Company or to the Company by
Indemnitee, as the case may be.


18.           Identical Counterparts.  This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.  Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence
the existence of this Agreement.


19.           Headings.  The headings of the paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.


20.           Governing Law.  The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles
thereof.


21.           Gender.  Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.


 


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


 


 


	
   

  	
  OVERSTOCK.COM,
  INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
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