Exhibit 10.2


 


OVERSTOCK.COM, INC.


NON-EMPLOYEE DIRECTORS


NONQUALIFIED DEFERRED COMPENSATION PLAN


 

















 


OVERSTOCK.COM, INC.


NON-EMPLOYEE DIRECTORS


NONQUALIFIED DEFERRED COMPENSATION PLAN


 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Article 1 - Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Account

  	
  1

  
	
  1.2

  	
  Administrator

  	
  1

  
	
  1.3

  	
  Board

  	
  1

  
	
  1.4

  	
  Change-in-Control

  	
  1

  
	
  1.5

  	
  Code

  	
  1

  
	
  1.6

  	
  Compensation

  	
  2

  
	
  1.7

  	
  Deferrals

  	
  2

  
	
  1.8

  	
  Deferral
  Election

  	
  2

  
	
  1.9

  	
  Director

  	
  2

  
	
  1.10

  	
  Effective Date

  	
  2

  
	
  1.11

  	
  Eligible
  Director

  	
  2

  
	
  1.12

  	
  Investment Fund

  	
  2

  
	
  1.13

  	
  Participant

  	
  2

  
	
  1.14

  	
  Plan Sponsor

  	
  2

  
	
  1.15

  	
  Plan Year

  	
  2

  
	
  1.16

  	
  Retirement

  	
  2

  
	
  1.17

  	
  Separation from
  Service

  	
  2

  
	
  1.18

  	
  Trust

  	
  2

  
	
  1.19

  	
  Trustee

  	
  3

  
	
   

  	
   

  	
   

  
	
  Article 2 - Participation

  	
  3

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Commencement of
  Participation

  	
  3

  
	
  2.2

  	
  Loss of Eligible
  Director Status

  	
  3

  
	
   

  	
   

  	
   

  
	
  Article 3 - Contributions

  	
  3

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Deferral
  Elections - General

  	
  3

  
	
  3.2

  	
  Time of Election

  	
  3

  
	
  3.3

  	
  Distribution
  Elections

  	
  4

  
	
  3.4

  	
  Additional
  Requirements

  	
  4

  
	
  3.5

  	
  Crediting of
  Contributions

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article 4 - Vesting

  	
  4

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Vesting of
  Deferrals

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article 5 - Accounts

  	
  4

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Accounts

  	
  4

  
	
  5.2

  	
  Investments,
  Gains and Losses

  	
  5

  



 

















 


	
  Article 6 - Distributions

  	
  5

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Distribution
  Election

  	
  5

  
	
  6.2

  	
  Distributions Upon an In-Service Account Triggering Date

  	
  5

  
	
  6.3

  	
  Distributions Upon Retirement

  	
  6

  
	
  6.4

  	
  Substantially Equal Annual Installments

  	
  6

  
	
  6.5

  	
  Distributions upon Death

  	
  6

  
	
  6.6

  	
  Changes to
  Distribution Elections

  	
  6

  
	
  6.7

  	
  Acceleration or Delay in Payments

  	
  7

  
	
  6.8

  	
  Unforeseeable
  Emergency

  	
  7

  
	
  6.9

  	
  Domestic
  Relations Orders

  	
  7

  
	
  6.10

  	
  Minimum
  Distribution

  	
  7

  
	
  6.11

  	
  Form of Payment

  	
  8

  
	
   

  	
   

  	
   

  
	
  Article 7 - Beneficiaries

  	
  8

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Beneficiaries

  	
  8

  
	
  7.2

  	
  Lost Beneficiary

  	
  8

  
	
   

  	
   

  	
   

  
	
  Article 8 - Funding

  	
  8

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Prohibition
  Against Funding

  	
  8

  
	
  8.2

  	
  Deposits in
  Trust

  	
  9

  
	
  8.3

  	
  Withholding of
  Participant Contributions

  	
  9

  
	
   

  	
   

  	
   

  
	
  Article 9 - General Provisions

  	
  9

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Administrator

  	
  9

  
	
  9.2

  	
  No Assignment

  	
  9

  
	
  9.3

  	
  Incompetence

  	
  10

  
	
  9.4

  	
  Identity

  	
  10

  
	
  9.5

  	
  Expenses

  	
  10

  
	
  9.6

  	
  Insolvency

  	
  10

  
	
  9.7

  	
  Amendment or
  Modification

  	
  10

  
	
  9.8

  	
  Plan Suspension

  	
  11

  
	
  9.9

  	
  Plan Termination

  	
  11

  
	
  9.10

  	
  Plan Termination
  due to a Change-in-Control

  	
  11

  
	
  9.11

  	
  Construction

  	
  11

  
	
  9.12

  	
  Governing Law

  	
  12

  
	
  9.13

  	
  Severability

  	
  12

  
	
  9.14

  	
  Headings

  	
  12

  
	
  9.15

  	
  Terms

  	
  12

  



 
















 


OVERSTOCK.COM, INC.


NON-EMPLOYEE DIRECTORS


NONQUALIFIED DEFERRED COMPENSATION PLAN


 


Overstock.com, Inc.,
a Delaware corporation, hereby adopts this Overstock.com, Inc.
Non-Employee Directors Nonqualified Deferred Compensation Plan (the “Plan”) for
the benefit of its non-employee members of the Board of Directors.  It is intended to comply with Internal
Revenue Code Section 409A.


 


Article 1 -
Definitions


 


1.1                               Account


 


The sum of all the bookkeeping sub-accounts as may be
established for each Participant as provided in Section 5.1 hereof.


 


1.2                               Administrator


 


An administrative
committee appointed by the Board.  The
Plan Administrator shall serve as the agent for the Plan Sponsor with respect
to the Trust.


 


1.3                               Board


 


The Board of Directors of the Plan Sponsor.


 


1.4                               Change-in-Control


 


Provided that such term shall be interpreted within
the meaning of regulations promulgated under Code Section 409A, a “Change-in-Control”
of the Plan Sponsor (which, for purpose of this Section 1.5 shall mean
Overstock.com, Inc. but not any of its affiliates or subsidiaries) shall
mean the first to occur of any of the following:


 


(a)                                  the date that any one person or persons
acting as a group, other than Patrick M. Byrne, Dorothy M. Byrne or John J.
Byrne or an individual or entity that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with Patrick M. Byrne, Dorothy M. Byrne and/or John J. Byrne, acquires
ownership of Plan Sponsor stock constituting more than fifty percent (50%) of
the total voting power of the Plan Sponsor;


 


(b)                                 the date that any one person or persons
acting as a group acquires substantially all of the assets of the Plan Sponsor;
or


 


(c)                                  the date that a majority of members of
the Plan Sponsor’s Board is replaced during any 12-month period by directors
whose appointment or election is not endorsed by a majority of the members of
the Board prior to the date of the appointment or elections.


 


1.5                               Code


 


The Internal Revenue Code of 1986, as amended.


 


1

















 


1.6                               Compensation


 


The Participant’s earned director fee remuneration for
serving as a Director, as defined herein.


 


1.7                               Deferrals


 


The portion of Compensation that a Participant elects
to defer in accordance with Section 3.1 hereof.


 


1.8                               Deferral Election


 


The separate agreement, submitted to the
Administrator, by which an Eligible Director agrees to participate in the Plan
and make Deferrals thereto for a Plan Year.


 


1.9                               Director


 


Any person serving on the Board.


 


1.10                        Effective Date


 


January 1, 2010.


 


1.11                        Eligible Director


 


Each non-employee member of the Board.


 


1.12                        Investment Fund


 


Each investment(s) which serves as a means to
measure value, increases or decreases with respect to a Participant’s Accounts.


 


1.13                        Participant


 


An Eligible Director who is a Participant as provided
in Article 2.


 


1.14                        Plan Sponsor


 


Overstock.com, Inc.


 


1.15                        Plan Year


 


Calendar year.


 


1.16                        Retirement


 


Retirement shall mean a Participant’s Separation from
Service from the Board of Directors.


 


1.17                        Separation from Service


 


Provided that such term shall be interpreted within
the meaning of regulations promulgated under Code Section 409A, a
Participant shall incur a Separation from Service with the Service Recipient
upon his or her cessation of service as a member of the Board.


 


1.18                        Trust


 


The agreement between the Plan Sponsor and the
Trustee, under which the assets of the Plan are held, administered and managed.


 


2

















 


1.19                        Trustee


 


U.S. Bank National Association or such other successor
that shall become Trustee pursuant to the terms of the Trust.


 


Article 2 -
Participation


 


2.1                               Commencement of Participation


 


Each Eligible Director shall become a Participant as
of the date on which his or her Deferral Election first becomes effective.


 


2.2                               Loss of Eligible Director Status


 


A Participant who is no longer an Eligible Director
shall not be permitted to submit a Deferral Election and all Deferrals for such
Participant shall cease as of the end of the Plan Year in which such
Participant is determined to no longer be an Eligible Director.  Amounts credited to the Account of a
Participant who is no longer an Eligible Director shall continue to be held
pursuant to the terms of the Plan and shall be distributed as provided in Article 6.


 


Article 3 -
Contributions


 


3.1                               Deferral Elections - General


 


A Participant’s Deferral Election for a Plan Year is
irrevocable for that applicable Plan Year; provided, however that a Deferral
Election for a Plan Year may be canceled if required under Section 6.8
(Unforeseeable Emergency) of this Plan. 
Such amounts deferred under the Plan shall not be made available to such
Participant, except as provided in Article 6, and shall reduce such
Participant’s Compensation from the Plan Sponsor in accordance with the
provisions of the applicable Deferral Election; provided, however, that all
such amounts shall be subject to the rights of the general creditors of the
Plan Sponsor as provided in Article 8. 
The Deferral Election, in addition to the requirements set forth below,
must designate: (i) the amount of Compensation to be deferred, (ii) the
time of the distribution, and (iii) the form of the distribution.


 


3.2                               Time of Election


 


A Deferral Election shall be void if
it is not made in a timely manner as follows:


 


(a)                                  A Deferral Election
with respect to any Compensation must be submitted to the Administrator before
the beginning of the calendar year during which the amount to be deferred will
be earned.  As of December 31 of
each calendar year, said Deferral Election is irrevocable for the calendar year
to which it relates.


 


(b)                                 Notwithstanding the
foregoing and in the discretion of the Plan Sponsor, in a year in which an
Eligible Director is first eligible to participate, and provided that such
Eligible Director is not eligible to participate in any other similar account
balance arrangement subject to Code Section 409A, such Deferral Election
may be submitted within thirty (30) days after the date on which the Eligible
Director is first eligible to participate, and such Deferral 


 


3

















 


Election shall apply to Compensation to be paid for services to be
performed during the remainder of the calendar year after such election is
made.


 


3.3                               Distribution Elections


 


At the time a Participant makes a
Deferral Election, he or she must also elect the time and form of the
distribution by establishing one or more In-Service Account(s) or
Retirement Account(s) as provided in Sections 5.1 and 6.1.  If the Participant fails to properly
designate the time and form of a distribution, the Participant’s Account shall
be designated as a Retirement Account and shall be paid in a lump sum.


 


3.4                               Additional Requirements


 


The Deferral Election, subject to
the limitations set forth in Sections 3.1 and 3.2 hereof, shall comply with the
following additional requirements, or as otherwise required by the
Administrator in its sole discretion:


 


(a)                                  Deferrals may be made
in whole percentages or stated dollar amounts with such limitations as
determined by the Administrator.


 


(b)                                 The maximum amount that
may be deferred each Plan Year is one-hundred percent (100%) of the Participant’s
Compensation.


 


(c)                                  The distribution year for an In-Service
Account must be at least two (2) Plan Years subsequent to the Plan Year in
which the Participant first establishes the In-Service subaccount to be
credited with contributions.


 


3.5                               Crediting of Contributions


 


Deferrals shall be credited to a
Participant’s Account, and if applicable transferred to the Trust, at such time
as the Plan Sponsor shall determine.


 


Article 4 -
Vesting


 


4.1                               Vesting of Deferrals


 


A Participant shall be one-hundred percent (100%)
vested in his or her Account attributable to Deferrals and any earnings or
losses on the investment of such Deferrals.


 


Article 5 -
Accounts


 


5.1                               Accounts


 


The Administrator shall establish and maintain a
bookkeeping account in the name of each Participant.  The Administrator shall also establish
sub-accounts as provided in subsection (a) and (b), below, as elected by
the Participant pursuant to Article 3. 
A Participant may have a maximum of ten (10) sub-accounts at any
time.


 


(a)                                  A Participant may establish one or more
Retirement Account(s) (“Retirement sub-accounts”) by designating as such on
the Participant’s Deferral Election. 
Each Participant’s Retirement sub-account shall be credited with
Deferrals (as specified in the 


 


4

















 


Participant’s
Deferral Election) and the Participant’s allocable share of any earnings or
losses on the foregoing.


 


(b)                                 A Participant may establish one or more
In-Service Accounts (“In-Service sub-accounts”) by designating as such in the
Participant’s Deferral Election the year in which payment shall be made.  Each Participant’s In-Service sub-account
shall be credited with Deferrals (as specified in the Participant’s Deferral
Election) and the Participant’s allocable share of any earnings or losses on
the foregoing.


 


5.2                               Investments, Gains and Losses


 


(a)                                  A Participant may direct that his or her
Retirement sub-accounts and or In-Service sub-accounts established pursuant to Section 5.1
may be valued as if they were invested in one or more Investment Funds as
selected by the Plan Sponsor in multiples of one percent (1%).  The Plan Sponsor may from time to time, at the discretion of the Administrator, change the
Investment Funds for purposes of this Plan.


 


(b)                                 The Administrator shall adjust the
amounts credited to each Participant’s Account to reflect Deferrals, investment
experience, distributions and any other appropriate adjustments.  Such adjustments shall be made as frequently
as is administratively feasible.


 


(c)                                  A Participant may change his or her
selection of Investment Funds no more than six (6) times each Plan Year with respect to his or her Account or sub-accounts
by filing a new election in accordance with procedures established by the
Administrator.  An election shall
be effective as soon as administratively feasible following the date the change
is submitted on a form prescribed by the Administrator.


 


(d)                                 Notwithstanding the
Participant’s ability to designate the Investment Fund in which his or her
deferred Compensation shall be deemed invested, the Plan Sponsor shall have no
obligation to invest any funds in accordance with the Participant’s
election.  Participants’ Accounts shall
merely be bookkeeping entries on the Plan Sponsor’s books, and no Participant
shall obtain any property right or interest in any Investment Fund.


 


Article 6 -
Distributions


 


6.1                               Distribution Election


 


Each Participant shall designate in his or her
Deferral Election the form and timing of his or her distribution by indicating
the type of sub-account as described under Section 5.1, and by designating
the form in which payments shall be made from the choices available under Section 6.2
and 6.3 hereof.  Notwithstanding anything
to the contrary contained herein provided, no acceleration of the time or
schedule of payments under the Plan shall occur except as permitted under this
Plan, Code Section 409A and the regulations thereunder.


 


6.2                               Distributions Upon an
In-Service Account Triggering Date


 


In-Service sub-account distributions
shall begin as soon as administratively feasible but no later than ninety (90)
days following January 1 of the calendar year designated by the 


 


5

















 


Participant
on a properly submitted Deferral Election, and are payable in either a lump-sum
payment or substantially equal annual installments, as described in Section 6.4
below, over a period of up to ten (10) years as elected by the Participant
in his or her Deferral Election.  If the
Participant fails to properly designate the form of the distribution, the
sub-account shall be paid in a lump-sum payment.


 


6.3                               Distributions Upon
Retirement


 


If the Participant has a Separation
from Service, the Participant’s Retirement sub-account(s) shall be
distributed as soon as administratively feasible but no later than ninety (90)
days following Participant’s Retirement, provided that the Participant shall
have no right to designate the taxable year of the payment.  Distribution shall be made either in a
lump-sum payment or in substantially equal annual installments, as defined in Section 6.4
below, over a period of up to ten (10) years as elected by the
Participant.  If the Participant fails to
properly designate the form of the distribution, the sub-account shall be paid
in a lump-sum payment.  If a Participant
has any In-Service sub-accounts at the time of his or her Retirement, said sub-accounts
shall not be distributed at Retirement; rather they shall be distributed
according to the Participant’s Deferral Election as it applies to that
sub-account.


 


6.4                               Substantially Equal
Annual Installments


 


(a)                                  The amount of the
substantially equal payments shall be determined by multiplying the Participant’s
Account or sub-account by a fraction, the denominator of which in the first
year of payment equals the number of years over which benefits are to be paid,
and the numerator of which is one (1).  The
amounts of the payments for each succeeding year shall be determined by
multiplying the Participant’s Account or sub-account as of the applicable
anniversary of the payout by a fraction, the denominator of which equals the
number of remaining years over which benefits are to be paid, and the numerator
of which is one (1). Installment payments made pursuant to this Section 6.4
shall be made as soon as administratively feasible but no later than ninety
(90) days following the distribution event and each anniversary of the
distribution event, provided that the Participant shall have no right to
designate the taxable year of any payment.


 


(b)                                 For purposes of the
Plan pursuant to Code Section 409A and regulations thereunder, a series of
annual installments from a particular subaccount shall be considered a single
payment.


 


6.5                               Distributions upon
Death


 


Upon the death of a Participant, all
amounts credited to his or her Account shall be paid, as soon as
administratively feasible but no later than ninety (90) days following
Participant’s date of death, to his or her beneficiary or beneficiaries, as
determined under Article 7 hereof, in a lump sum, provided that the
beneficiary or beneficiaries shall have no right to designate the taxable year
of the payment.


 


6.6                               Changes to Distribution Elections


 


A Participant will be permitted to elect to change the
form or timing of the distribution of the balance of his or her one or more
sub-accounts within his or her Account to the extent 


 


6

















 


permitted and in
accordance with the requirements of Code Section 409A(a)(4)(C), including
the requirement that (i) a redeferral election may not take effect until
at least twelve (12) months after such election is filed with the Plan Sponsor,
(ii) an election to further defer a distribution (other than a
distribution upon death or an unforeseeable emergency) must result in the first
distribution subject to the election being made at least five (5) years
after the previously elected date of distribution, and (iii) any
redeferral election affecting a distribution at a fixed date must be filed with
the Plan Sponsor at least twelve (12) months before the first scheduled payment
under the previous fixed date distribution election.  Once a sub-account begins distribution, no
such changes to distributions shall be permitted.


 


6.7                               Acceleration or Delay in Payments


 


To the extent permitted by Code Section 409A, and
notwithstanding any provision of the Plan to the contrary, the Administrator,
in its sole discretion, may elect to (i) accelerate the time or form of
payment of a benefit owed to a Participant hereunder in accordance with the
terms and subject to the conditions of Treasury Regulations Section 1.409A-3(j)(4),
or (ii) delay the time of payment of a benefit owed to a Participant
hereunder in accordance with the terms and subject to the conditions of
Treasury Regulations Section 1.409A-2(b)(7).


 


6.8                               Unforeseeable Emergency


 


The Administrator may permit an early distribution of
part or all of any deferred amounts; provided, however, that such distribution
shall be made only if the Administrator, in its sole discretion, determines
that the Participant, or the Participant’s beneficiary, has experienced an
Unforeseeable Emergency.  An
Unforeseeable Emergency is defined as a severe financial hardship resulting
from an illness or accident of the Participant, the Participant’s spouse, the
Participant’s beneficiary, or a dependent (as defined in Code Section 152(a))
of the Participant, loss of the Participant’s property due to casualty, or
other similar extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant.  If an Unforeseeable Emergency is determined
to exist, a distribution may not exceed the amounts necessary to satisfy such
emergency plus amounts necessary to pay taxes reasonably anticipated as a
result of the distribution, after taking into account the extent to which such
hardship is or may be relieved through reimbursement or compensation by insurance
or otherwise or by liquidation of the Participant’s assets (to the extent the
liquidation of such assets would not itself cause severe financial
hardship).  Upon a distribution to a
Participant under this Section 6.10, the Participant’s Deferrals shall
cease and no further Deferrals shall be made for such Participant for the
remainder of the Plan Year and for the immediately succeeding Plan Year.


 


6.9                               Domestic Relations Orders


 


The Administrator may permit the acceleration of the
time or schedule of a payment under the Plan to an individual other than a
Participant as may be necessary to fulfill a domestic relations order (as
defined in Code Section 414(p)(1)(B)).


 


6.10                        Minimum Distribution


 


Notwithstanding any provision to the
contrary, if the balance of a Participant’s Account at the time of a
distribution event or at the time of a scheduled installment payment does not
exceed $15,000 (or, if less, the applicable dollar amount under Code Section 402(g)),
then the Participant shall be paid his or her Account as a single lump sum, provided that
the distribution 


 


7

















 


results in the
termination and liquidation of the Participant’s entire interest in the
Plan, including all agreements, methods, programs or other arrangements with
respect to which deferrals of compensation are treated as having been deferred
under a single plan under the plan aggregation rules of Code Section 409A
and regulations thereunder.


 


6.11                        Form of Payment


 


All distributions shall be made in
the form of cash.


 


Article 7 -
Beneficiaries


 


7.1                               Beneficiaries


 


Each Participant may from time to time designate one
or more persons (who may be any one or more members of such person’s family or
other persons, administrators, trusts, foundations or other entities) as his or
her beneficiary under the Plan.  Such
designation shall be made in a form prescribed by the Administrator.  Each Participant may at any time and from
time to time, change any previous beneficiary designation, without notice to or
consent of any previously designated beneficiary, by amending his or her
previous designation in a form prescribed by the Administrator.  If the beneficiary does not survive the
Participant (or is otherwise unavailable to receive payment), or if no beneficiary
is validly designated then the amounts payable under this Plan shall be paid to
the Participant’s estate.  If more than
one person is the beneficiary of a deceased Participant, each such person shall
receive a pro rata share of any death benefit payable unless otherwise
designated in the applicable form.  If a
beneficiary who is receiving benefits dies, all benefits that were payable to
such beneficiary shall then be payable to the estate of that beneficiary.


 


7.2                               Lost Beneficiary


 


All Participants and beneficiaries shall have the
obligation to keep the Administrator informed of their current address until
such time as all benefits due have been paid. 
If a Participant or beneficiary cannot be located by the Administrator
exercising due diligence, then, in its sole discretion, the Administrator may
presume that the Participant or beneficiary is deceased for purposes of the
Plan and all unpaid amounts (net of due diligence expenses) owed to the
Participant or beneficiary shall be paid accordingly or, if a beneficiary
cannot be so located, then such amounts may be forfeited.  Any such presumption of death shall be final,
conclusive and binding on all parties.


 


Article 8 -
Funding


 


8.1                               Prohibition Against Funding


 


Should any investment be acquired in connection with
the liabilities assumed under this Plan, it is expressly understood and agreed
that the Participants and beneficiaries shall not have any right with respect
to, or claim against, such assets nor shall any such purchase be construed to
create a trust of any kind or a fiduciary relationship between the Plan Sponsor
and the Participants, their beneficiaries or any other person.  Any such assets shall be and remain a part of
the general, unpledged, unrestricted assets of the Plan Sponsor, subject to the
claims of its general creditors.  It is
the express intention of the parties hereto that this arrangement shall be
unfunded for tax purposes.  Each
Participant and beneficiary shall be required to look to the 


 


8

















 


provisions of this Plan
and to the Plan Sponsor itself for enforcement of any and all benefits due
under this Plan, and to the extent any such person acquires a right to receive
payment under this Plan, such right shall be no greater than the right of any
unsecured general creditor of the Plan Sponsor. 
The Plan Sponsor or the Trust shall be designated the owner and
beneficiary of any investment acquired in connection with its obligation under
this Plan.


 


8.2                               Deposits in Trust


 


Notwithstanding Section 8.1, or any other
provision of this Plan to the contrary, the Plan Sponsor may deposit into the
Trust any amounts it deems appropriate to pay the benefits under this
Plan.  The amounts so deposited may
include all contributions made pursuant to a Deferral Election by a
Participant.


 


8.3                               Withholding of Participant Contributions


 


The Administrator is authorized to make any and all
necessary arrangements with the Plan Sponsor in order to withhold the
Participant’s Deferrals under Section 3.1 hereof from his or her
Compensation.  The Administrator shall
determine the amount and timing of such withholding.


 


Article 9 -
General Provisions


 


9.1                               Administrator


 


(a)                                  The Administrator is expressly empowered
to limit the amount of Compensation that may be deferred; to deposit amounts
into the Trust in accordance with Section 8.2 hereof; to interpret the
Plan, and to determine all questions arising in the administration,
interpretation and application of the Plan; to employ actuaries, accountants,
counsel, and other persons it deems necessary in connection with the
administration of the Plan; to request any information from the Plan Sponsor it
deems necessary to determine whether the Plan Sponsor would be considered
insolvent or subject to a proceeding in bankruptcy; and to take all other
necessary and proper actions to fulfill its duties as Administrator.


 


(b)                                 The Administrator shall not be liable for
any actions by it hereunder, unless due to its own negligence, willful
misconduct or lack of good faith.


 


(c)                                  The Administrator shall be indemnified
and saved harmless by the Plan Sponsor from and against all personal liability
to which it may be subject by reason of any act done or omitted to be done in
its official capacity as Administrator in good faith in the administration of
the Plan and Trust, including all expenses reasonably incurred in its defense
in the event the Plan Sponsor fails to provide such defense upon the request of
the Administrator.  The Administrator is
relieved of all responsibility in connection with its duties hereunder to the
fullest extent permitted by law, short of breach of duty to the beneficiaries.


 


9.2                               No Assignment


 


Benefits or payments under this Plan shall not be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors of the Participant
or the Participant’s beneficiary, whether voluntary or involuntary, and 


 


9

















 


any attempt to so
anticipate, alienate, sell, transfer, assign, pledge, encumber, attach or
garnish the same shall not be valid, nor shall any such benefit or payment be
in any way liable for or subject to the debts, contracts, liabilities,
engagement or torts of any Participant or beneficiary, or any other person
entitled to such benefit or payment pursuant to the terms of this Plan, except
to such extent as may be required by law. 
If any Participant or beneficiary or any other person entitled to a
benefit or payment pursuant to the terms of this Plan becomes bankrupt or
attempts to anticipate, alienate, sell, transfer, assign, pledge, encumber,
attach or garnish any benefit or payment under this Plan, in whole or in part,
or if any attempt is made to subject any such benefit or payment, in whole or in
part, to the debts, contracts, liabilities, engagements or torts of the
Participant or beneficiary or any other person entitled to any such benefit or
payment pursuant to the terms of this Plan, then such benefit or payment, in
the discretion of the Administrator, shall cease and terminate with respect to
such Participant or beneficiary, or any other such person.


 


9.3                               Incompetence


 


If the Administrator determines that any person to
whom a benefit is payable under this Plan is incompetent by reason of physical
or mental disability, the Administrator shall have the power to cause the
payments becoming due to such person to be made to another for his or her
benefit without responsibility of the Administrator or the Plan Sponsor to see
to the application of such payments.  Any
payment made pursuant to such power shall, as to such payment, operate as a
complete discharge of the Plan Sponsor, the Administrator and the Trustee.


 


9.4                               Identity


 


If, at any time, any doubt exists as to the identity
of any person entitled to any payment hereunder or the amount or time of such
payment, the Administrator shall be entitled to hold such sum until such
identity or amount or time is determined or until an order of a court of
competent jurisdiction is obtained.  The
Administrator shall also be entitled to pay such sum into court in accordance
with the appropriate rules of law. 
Any expenses incurred by the Plan Sponsor, Administrator, and Trust
incident to such proceeding or litigation shall be charged against the Account
of the affected Participant.


 


9.5                               Expenses


 


All expenses incurred in the administration of the
Plan whether incurred by the Plan Sponsor or the Plan shall be paid by the Plan
Sponsor.


 


9.6                               Insolvency


 


Should the Plan Sponsor be considered insolvent (as
defined by the Trust), the Plan Sponsor, through its Board and chief executive
officer, shall give immediate written notice of such to the Administrator of
the Plan and the Trustee.  Upon receipt
of such notice, the Administrator or Trustee shall cease to make any payments
to Participants or their beneficiaries and shall hold any and all assets
attributable to the Plan Sponsor for the benefit of the general creditors of
the Plan Sponsor.


 


9.7                               Amendment or Modification


 


The Plan Sponsor may, at any time,
in its sole discretion, amend or modify the Plan in whole or in part, except
that no such amendment or modification shall have any retroactive effect 


 


10

















 


to
reduce any amounts allocated to a Participant’s Accounts, and provided that
such amendment or modification complies with Code Section 409A and related
regulations thereunder.


 


9.8                               Plan Suspension


 


The Plan Sponsor further reserves
the right to suspend the Plan in whole or in part, except that no such
suspension shall have any retroactive effect to reduce any amounts allocated to
a Participant’s Accounts, and provided that the distribution of the vested
Participant Accounts shall not be accelerated but shall be paid at such time
and in such manner as determined under the terms of the Plan immediately prior
to suspension as if the Plan had not been suspended.


 


9.9                               Plan Termination


 


The Plan Sponsor further reserves
the right to terminate the Plan in whole or in part, in the following manner,
except that no such termination shall have any retroactive effect to reduce any
amounts allocated to a Participant’s Accounts, and provided that any
distribution in connection with such termination complies with Code Section 409A
and related regulations thereunder:


 


(a)                                  The Plan Sponsor, in its sole discretion,
may terminate the Plan and distribute all vested Participants’ Accounts no
earlier than twelve (12) calendar months from the date of the Plan termination
and no later than twenty-four (24) calendar months from the date of the Plan
termination, provided however that all other similar arrangements are also
terminated by the Plan Sponsor for any affected Participant and no other
similar arrangements are adopted by the Plan Sponsor for any affected
Participant within a three (3) year period from the date of termination;
or


 


(b)                                 The Plan Sponsor may decide, in its sole
discretion, to terminate the Plan in the event of a corporate dissolution taxed
under Code Section 331, or with the approval of a bankruptcy court,
provided that the Participants vested Account balances are distributed to
Participants and are included in the Participants’ gross income in the latest
of:  (i) the calendar year in which
the termination occurs; (ii) the calendar year in which the amounts
deferred are no longer subject to a substantial risk of forfeiture; or (iii) the
first calendar year in which payment is administratively practicable.


 


9.10                        Plan Termination due to a Change-in-Control


 


The Plan Sponsor may decide, in its discretion, to
terminate the Plan in the event of a Change-in-Control and distribute all
vested Participants’ Account balances no earlier than thirty (30) days prior to the
Change-in-Control and no later than twelve (12) months after the effective date
of the Change-in-Control, provided however that the Plan Sponsor terminates all
other similar arrangements for any affected Participant.


 


9.11                        Construction


 


All questions of interpretation, construction or
application arising under or concerning the terms of this Plan shall be decided
by the Administrator, in its sole and final discretion, whose decision shall be
final, binding and conclusive upon all persons.


 


11

















 


9.12                        Governing Law


 


This Plan shall be governed by, construed and
administered in accordance with the applicable provisions of Code Section 409A,
and any other applicable federal law, provided, however, that to the extent not
preempted by federal law this Plan shall be governed by, construed and
administered under the laws of the State of Utah other than its laws respecting
choice of law.


 


9.13                        Severability


 


If any provision of this Plan is held invalid or
unenforceable, its invalidity or unenforceability shall not affect any other
provision of this Plan and this Plan shall be construed and enforced as if such
provision had not been included therein.


 


9.14                        Headings


 


The Article headings contained herein are
inserted only as a matter of convenience and for reference and in no way
define, limit, enlarge or describe the scope or intent of this Plan nor in any
way shall they affect this Plan or the construction of any provision thereof.


 


9.15                        Terms


 


Capitalized terms shall have meanings as defined
herein.  Singular nouns shall be read as
plural, masculine pronouns shall be read as feminine, and vice versa, as
appropriate.


 


IN WITNESS WHEREOF,
Overstock.com, Inc. has caused this instrument to be executed by its duly
authorized officer, effective as of this 11th day of December, 2009.


 


	
   

  	
  Overstock.com, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jonathan E. Johnson

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  President

  



 


	
  ATTEST:

  
	
   

  	
   

  
	
  By:

  	
  /s/ Stephen J. Chesnut

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  Senior Vice President,
  Finance

  



 


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