Exhibit 10.20


 


Certificate No. ____


 


THE SECURITIES REPRESENTED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) OR APPLICABLE
STATE LAW AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED, PLEDGED, OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT AND APPLICABLE STATE LAW
OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER
OF THE SECURITIES, SUCH OFFER, SALE, OR TRANSFER, PLEDGE, OR HYPOTHECATION IS
IN COMPLIANCE THEREWITH.


 


WARRANT


 


(Void
after 5:00 p.m., Mountain Daylight Saving Time


on
____________)


 


                This
certifies that, for value received, _________________
or registered assigns (collectively, the “Holder”), is entitled at
any time after the date hereof, and before 5:00 p.m., Mountain Daylight Saving
Time, on _______________ (the “Expiration Date”) to purchase from
Overstock.com, Inc., a Utah corporation (the “Company”), __________________________ (__________)
shares of the Common Stock of the Company (the “Warrant Shares”) at a price of (i)
_______________ (_________) per share (the “Exercise Price”). The number of
Warrant Shares to be received upon the exercise of this Warrant and the
Exercise Price may further be adjusted from time to time as hereinafter set
forth.


 


                This
Warrant is issued pursuant to the ____________________ Agreement (the
"Agreement") between the Company and the Holder.


 


                1.             Exercise of Warrant. This Warrant may be
exercised until the Expiration Date (or if such date is a day on which federal
or state chartered banking institutions are authorized by law to close, then on
the next succeeding day which shall not be such a day) by presentation and
surrender of this Warrant certificate (the “Warrant Certificate”) to the
Company at its principal office (or at the office of its stock transfer agent,
if any), with the Purchase Form annexed hereto duly executed and accompanied by
payment of the Exercise Price in cash or by check, payable to the order of the
Company, together with all taxes applicable upon such exercise. Upon receipt by
the Company of this Warrant Certificate at its office (or at the office of its
stock transfer agent, if any) in proper form for exercise and accompanied by
payment as herein provided, the Company shall promptly issue and cause to be
delivered to the Holder a certificate, issued in the name of the Holder, for
the full number of Warrant Shares so purchased, together with cash in respect
of any fractional shares, calculated as provided in Section 3 below. Upon
proper exercise of this Warrant, the Holder shall be deemed to be the holder of
record of the Warrant Shares issuable upon such exercise, notwithstanding that
the stock transfer books of the Company shall then be closed or that
certificates representing such shares shall not then be actually delivered to
the Holder.


 


 

















 


 


                2.             Reservation of Shares. The Company hereby
covenants and agrees that, at all times during the period this Warrant is
outstanding, it will reserve for issuance and delivery upon exercise of this
Warrant such number of shares of its Common Stock (and/or other securities) as
shall be required for issuance and delivery upon exercise of this Warrant. If
it becomes necessary at any time to increase the number of reserved shares for
this purpose, the Board of Directors of the Company shall promptly increase the
number of authorized and/or reserved shares to a number sufficient to provide
for the number of shares that may be at that time issuable to the Holder as
described above. If it is necessary to increase the number of authorized shares
for this purpose, the Board of Directors will use its best efforts to obtain
any required approval of this increase by the shareholders.


 


                3.             Fractional Shares. No fractional shares or stock
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional shares which would otherwise be issuable,
the Company shall pay to the Holder cash equal to the product of such fraction
multiplied by the then current fair market value of one share of Common Stock,
computed to the nearest whole cent. The then current fair market value of such
shares shall be as determined in good faith by the Board of Directors of the
Company.


 


                4.             Transfer, Exchange, Assignment, or Loss of Warrant.


 


                                (a)           This Warrant and the Warrant Shares
may not be assigned or transferred except in accordance with the provisions of
the Securities Act of 1933, as amended, and the Rules and Regulations
promulgated thereunder (said Act and such Rules and Regulations being
hereinafter collectively referred to as the “Act”). Any purported transfer or
assignment made other than in accordance with this Section 4 or hereof shall be
null and void and of no force and effect.


 


                                (b)           This Warrant and the Warrant Shares
shall be transferable only upon the opinion of counsel satisfactory to the
Company, which may be counsel to the Company, that (i) the Warrant or the
Warrant Shares may be legally transferred without registration under the Act;
and (ii) such transfer will not violate any applicable law or governmental rule
or regulation including, without limitation, any applicable federal or state
securities law, and the regulations of any exchange on which the securities of
the Company may be registered. The Company may cause the following legend to be
set forth on each certificate representing Warrant Shares or any other security
issued or issuable upon exercise of this Warrant, unless counsel for the
Company is of the opinion that such legend is unnecessary:


 


THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “ACT”) OR APPLICABLE STATE LAW AND MAY NOT BE
OFFERED, SOLD, OR OTHERWISE TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT AND APPLICABLE STATE LAW OR, IN THE OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THE SECURITIES,
SUCH OFFER, SALE, OR TRANSFER, PLEDGE, OR HYPOTHECATION IS IN COMPLIANCE
THEREWITH.


 


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                                (c)           Any assignment permitted hereunder
shall be made by surrender of this Warrant Certificate to the Company at its
principal office with the Assignment Form annexed hereto duly executed,
together with funds sufficient to pay any transfer tax. In such event the
Company shall, without charge, execute and deliver a new Warrant Certificate in
the name of the assignee named in such Assignment Form and this Warrant
Certificate shall promptly be canceled.


 


                                (d)           Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction, or mutilation of
this Warrant Certificate, and, in the case of loss, theft, or destruction, of
indemnification and/or bond satisfactory to the Company, and, in the case of
mutilation, upon surrender and cancellation of this Warrant Certificate, the
Company will execute and deliver a new Warrant Certificate of like tenor and
date, and any such lost, stolen, destroyed, or mutilated Warrant Certificate
shall thereupon become void.


 


                5.             Rights of the Holder. The Holder shall not, by
virtue of ownership of this Warrant, be entitled to any rights as a shareholder
of the Company, either at law or equity, and the rights of the Holder are
limited to those expressed in this Warrant and are not enforceable against the
Company except to the extent set forth herein.


 


                6.             Adjustments.


 


                                (a)           Certain Adjustments. The
Exercise Price and the number of shares of Common Stock issuable upon exercise
of each Warrant shall be subject to adjustment from time to time as follows:


 


                                                                                (1)               Stock Dividends; Stock Splits;
Reverse Stock Splits, Etc. In case the Company shall (i) pay a dividend
with respect to its capital stock in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock, or (iii) combine its outstanding shares of
Common Stock into a smaller number of shares of any class of Common Stock (any
one of which actions is herein referred to as an “Adjustment Event”), the
number of shares of Common Stock purchasable upon exercise of the Warrant
immediately prior to the record date for such Adjustment Event shall be
adjusted so that the Holder shall thereafter be entitled to receive the number
of shares of Common Stock that such Holder would have owned or have been
entitled to receive after the happening of such Adjustment Event, had such
Warrant been exercised immediately prior to the happening of such Adjustment
Event or any record date with respect thereto. An adjustment made pursuant to
this Section 6(a)(1) shall become effective immediately after the effective
date of such Adjustment Event retroactive to the record date, if any, for such
Adjustment Event.


 


                                                                                (2)               Adjustment of Exercise Price.
Whenever the number of shares of Common Stock purchasable upon the exercise of
the Warrant is adjusted pursuant to Section 6(a)(1) above, the Exercise Price
for each share of Common Stock payable upon exercise of the Warrant shall be
adjusted by multiplying such Exercise Price immediately


 


 


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                                                prior to such
adjustment by a fraction, the numerator of which shall be the number of shares
of Common Stock purchasable upon the exercise of the Warrant immediately prior
to such adjustment, and the denominator of which shall be the number of shares
of Common Stock so purchasable immediately thereafter.


 


                                                                                (3)               De Minimis Adjustments. No
adjustment in the number of shares of Common Stock purchasable hereunder shall
be required unless such adjustment would require an increase or decrease of at
least 1.0% percent in the number of shares of Common Stock purchasable upon an
exercise of the Warrant; provided, however, that any adjustments which by
reason of this Section 6(a)(3) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
shall be made to the nearest full share.


 


                                (b)           Mergers. If the Company shall
merge or consolidate with another corporation, the holder of this Warrant shall
thereafter have the right, upon exercise hereof and payment of the Exercise
Price, to receive solely the kind and amount of shares of stock (including, if
applicable, Common Stock), other securities, property or cash or any
combination thereof receivable by a holder of the number of shares of Common
Stock for which this Warrant might have been exercised immediately prior to
such merger or consolidation.


 


                                (c)           Recapitalizations. In case of
any recapitalization or reclassification or change of the shares of Common
Stock issuable upon exercise of this Warrant (other than elimination of par
value, a change in par value, or from par value to no par value, or as the result
of subdivision or combination of shares, but including any reclassification of
the shares of Common Stock into two or more classes or series of shares), or in
case of any merger or consolidation of another corporation into the Company in
which the Company is the surviving corporation and in which there is a
reclassification or change in the shares of Common Stock (other than a change
in par value or from par value to no par value or as a result of a subdivision
or combination, but including any reclassification of the shares of Common
Stock into two or more classes or series of shares), this Warrant shall
thereafter have the right, upon exercise hereof and payment of the Exercise
Price, to receive solely the kind and amount of shares of stock, other securities,
property or cash or any combination thereof receivable upon such
reclassification, change, merger or consolidation by a holder of the number of
shares of Common Stock for which this Warrant might have been exercised
immediately prior to such reclassification, change, merger or consolidation.


 


                                (d)           Adjustment Notice. Whenever
the number or kind of securities purchasable upon the exercise of the Warrant
or the Exercise Price is adjusted, as herein provided, the Company shall
promptly notify the Holder in writing of such adjustment or adjustments and
shall deliver to such Holder a certificate setting forth a brief statement of
the facts requiring such adjustment and setting forth the computation by which
such adjustment was made.


 


                                (e)           Warrant Certificates. The form
of this Warrant Certificate need not be changed because of any change in the
Exercise Price or in the number or kind of shares purchasable


 


 


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upon the exercise of the Warrant. However, the Company may at the time
in its sole discretion make any change in the form of the Warrant Certificate
that it may deem appropriate and that does not affect the substance thereof.


 


                                (f)            Duty to Make Fair Adjustments in
Certain Cases. If any event occurs as to which, in the opinion of the Board
of Directors, the other provisions of this Section 6 are not strictly
applicable or, if strictly applicable, would not fairly protect the purchase
rights of the Warrant in accordance with the essential intent and principles of
such provisions, then the Board of Directors shall make an adjustment in the
application of such provisions, in accordance with such essential intent and
principles, so as to protect such purchase right as aforesaid.


 


                7.             Notices to Warrant Holders of
Certain Events. So long as this Warrant shall be outstanding and
unexercised (i) if the Company shall pay any dividend or make any distribution
upon its Common Stock, or (ii) if the Company shall offer to the holders of its
Common Stock the opportunity for subscription or purchase by them of any shares
of stock of any class or any other rights, or (iii) in the even of any capital
reorganization of the Company, reclassification of the capital stock of the
Company, consolidation or merger of the Company with or into another
corporation, sale, lease or transfer of all or substantially all of the
property and assets of the Company to another corporation, or voluntary or
involuntary dissolution, the Company shall cause to be delivered to the Holder
a notice containing a brief description of the proposed transaction, together
with the date, as the case may be, on which a record is to be taken for the
purpose of such dividend, distribution, or rights or on which such
reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation, or winding up is to take place. In the case of a
dividend or other distribution by the Company, the Company shall deliver such
notice to Holder a least 20 days prior to record date for such dividend or
distribution. In the case of a reclassification, reorganization, consolidation,
merger, conveyance, dissolution, liquidation, or winding up, the Company shall
deliver such notice to Holder at least 20 days prior to the earlier of the date
of a shareholders meeting called to approve such transaction, if any, or the
date of such event.


 


                8.             Notices Generally. Notices
and other communications to be given to the Holder of the Warrant evidenced by
this Warrant Certificate shall be delivered by hand or mailed, postage prepaid,
to Holder at the address stated below or such other address as the Holder shall
have designated by written notice to the Company as provided herein. Notices or
other communications to the Company shall be delivered by hand or mailed,
postage prepaid, to the Company at 2855 East Cottonwood Parkway, Salt Lake
City, Utah 84121, Attention Chief Financial Officer, or such other address as
the Company shall have designated by written notice to such registered owner as
herein provided. Notice by mail shall be deemed given when deposited in the
United States mail, postage prepaid, as herein provided.


 


                9.             Governing Law. This Warrant
shall be governed by and constructed in accordance with the laws of the State
of Utah applicable to contracts entered into and to be performed wholly within
such State.


 


 


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                10.           Amendments. This Warrant may
not be modified except in a writing signed by the Company and Holder.


 


                IN WITNESS
WHEREOF, the Company has executed this Warrant Certificate as of this ___ day
of _________, ______.


 


	
   

  	
  OVERSTOCK.COM, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HOLDER ADDRESS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
				



 


 


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PURCHASE FORM


 


The undersigned hereby elects to exercise the Warrant represented by
the attached Warrant Certificate to the extent of purchasing
________________________________ (____________) shares of the Common Stock of
Overstock.com, Inc., a Utah corporation (the “Company”), and herewith presents
to the Company cash or a check in the amount of _______________________
($___________) in payment of the Exercise Price thereof.


 


 


 


 


	
   

  	
   

  
	
   

  	
  Name of Holder (please
  print)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Signature of Holder or
  Authorized

  
	
   

  	
   

  	
  Representative, if any

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name of Authorized
  Representative, if any

  
	
   

  	
  (please print)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title of Authorized
  Representative, if any

  
	
   

  	
  (please print)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date

  
	
   

  	
   

  



 


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ASSIGNMENT FORM


 


FOR VALUE RECEIVED, the undersigned Holder of the Warrant represented
by the attached Warrant Certificate hereby sells, assigns, and transfers unto
the Assignee named below the right to purchase
____________________________________ (____________________) shares of the
Common Stock of Overstock.com, Inc., a Utah corporation (the “Company”), that
are represented by the attached Warrant Certificate and does hereby irrevocably
constitute and appoint the Company and/or its transfer agent as attorney to
transfer the same on the books of the Company, with full power of substitution
in the premises.


 


	
   

  	
   

  
	
   

  	
  Name of Assignee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address of Assignee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name of Holder (please
  print)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Signature of Holder or
  Authorized

  
	
   

  	
   

  	
  Representative, if any

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name of Authorized
  Representative, if any

  
	
   

  	
  (please print)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title of Authorized
  Representative

  
	
   

  	
  (please print)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date

  



 


 


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