Exhibit 4.2





 


 


 


 


OVERSTOCK.COM,
INC.


 


6322 South 3000 East, Suite 100

Salt Lake City, Utah 84121

T:  (801) 947-3100


F: 
801.___.____


 


 


INVESTOR
RIGHTS AGREEMENT


March 4,
2002


 


 


 


 


 




 




















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1
  Restrictions on Transferability of Securities; Registration Rights

  	
  1

  
	
  1.1

  	
  Transfer
  Restrictions

  	
  1

  
	
  1.2

  	
  Requested
  Registration

  	
  3

  
	
  1.3

  	
  Company
  Registration

  	
  5

  
	
  1.4

  	
  Expenses
  of Registration

  	
  6

  
	
  1.5

  	
  Registration
  on Form S-3

  	
  7

  
	
  1.6

  	
  Registration
  Procedures

  	
  7

  
	
  1.7

  	
  Indemnification

  	
  8

  
	
  1.8

  	
  Information
  by Holder

  	
  10

  
	
  1.9

  	
  Limitations
  on Subsequent Registration Rights

  	
  10

  
	
  1.10

  	
  Rule 144
  Reporting

  	
  11

  
	
  1.11

  	
  Transfer
  or Assignment of Registration Rights

  	
  11

  
	
  1.12

  	
  “Market
  Standoff” Agreement

  	
  11

  
	
  1.13

  	
  Delay of
  Registration

  	
  12

  
	
  1.14

  	
  Termination
  of Registration Rights

  	
  12

  
	
  SECTION 2
  Information and Inspection Covenants; Voting Agreement

  	
  12

  
	
  2.1

  	
  Company
  Covenants

  	
  12

  
	
  2.2

  	
  Termination
  of Covenants

  	
  14

  
	
  SECTION 3 Right of
  First Offer

  	
  14

  
	
  3.1

  	
  Right of
  First Offer

  	
  14

  
	
  3.2

  	
  Transfer
  or Assignment of Rights of First Offer

  	
  16

  
	
  SECTION 4
  Miscellaneous

  	
  16

  
	
  4.1

  	
  Certain
  Definitions

  	
  16

  
	
  4.2

  	
  Amendment

  	
  18

  
	
  4.3

  	
  Notices

  	
  19

  
	
  4.4

  	
  Governing
  Law

  	
  19

  
	
  4.5

  	
  Successors
  and Assigns

  	
  19

  
	
  4.6

  	
  Entire
  Agreement

  	
  20

  
	
  4.7

  	
  Delays or
  Omissions

  	
  20

  
	
  4.8

  	
  Severability

  	
  20

  
	
  4.9

  	
  Counterparts

  	
  20

  
	
  4.10

  	
  Expenses

  	
  20

  
	
  4.11

  	
  Severability

  	
  20

  
	
  4.12

  	
  Telecopy
  Execution and Delivery

  	
  20

  
	
  4.13

  	
  Jurisdiction;
  Venue

  	
  21

  
	
  4.14

  	
  Jury
  Trial

  	
  21

  
	
  4.15

  	
  Further
  Assurances

  	
  21

  
	
  4.16

  	
  Confidentiality

  	
  21

  
				



 


i

















 


OVERSTOCK.COM, INC.


INVESTOR RIGHTS AGREEMENT


 


THIS INVESTOR RIGHTS AGREEMENT (this “Agreement”) is made as of March 4, 2002, by and among
Overstock.com, Inc., a Utah corporation (the “Company”), the persons and entities listed on
the Schedule of Investors attached hereto as Schedule I (each,
an “Investor” and
collectively, the “Investors”),
those holders of the Company’s Common Stock listed on Schedule II
(each, a “Common Holder”
and collectively, the “Common Holders”), and, for purposes of Sections 1 and 4
only, Eileen Simmons.


Except as otherwise
defined herein, capitalized terms have the meanings set forth in
Section 4.1 hereof.


WHEREAS:  The Investors are parties to the
Series A Preferred Stock Purchase Agreement of even date herewith, between
the Company and the Investors (the “Purchase Agreement”), certain of the Company’s and the
Investors’ obligations under which are conditioned upon the execution and
delivery by such Investors, the Common Holders and the Company of this
Agreement; and


WHEREAS:  Eileen Simmons is party to a certain agreement
dated as of October 27, 1999, by and among the Company, Robert Brazell and the
Prior Purchaser (the “Simmons
Agreement”);


WHEREAS:  Pursuant to the Simmons Agreement, Eileen
Simmons is entitled to certain rights of registration with respect to her shares
of Common Stock of the Company;


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


SECTION 1


Restrictions on
Transferability of Securities; Registration Rights


1.1          Transfer Restrictions.


(a)   Each Holder agrees not to sell, assign,
transfer, pledge or make any other disposition of all or any portion of the
Registrable Securities held by the Holder unless and until the transferee has
agreed in writing for the benefit of the Company to be bound by
Section 1.12 hereof, to be bound by this Section 1.1, provided and to
the extent such Section 1.1 is then applicable, and


(i)            There is then in effect a
registration statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with such registration
statement; or


(ii)           Such Holder shall have notified the
Company of the proposed disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the proposed disposition,
and, if reasonably requested by the Company, such Holder 

















 


shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company,
that such disposition will not require registration of such shares under the
Securities Act and applicable state law. 
The Company agrees that it will not require opinions of counsel for
transactions made pursuant to Rule 144 except in unusual circumstances.


(iii)          Notwithstanding the provisions of
paragraphs (i) and (ii) above, no such registration statement or opinion of
counsel shall be necessary for and the Company shall promptly facilitate any
transfer by a Holder to any partnership, limited liability company, corporation
or other entity that is directly or indirectly controlling, controlled by or
under common control with the Holder or which is (A) a partnership to its
partners or retired partners in accordance with partnership interests,
(B) a corporation to its shareholders in accordance with their interest in
the corporation, (C) a limited liability company to its members or former
members in accordance with their interest in the limited liability company, or
(D) to the Holder’s family member or trust for the benefit of an
individual Holder, provided that the transferee will be
subject to the terms of this Section 1.1 to the same extent as if such
transferee were an original Holder hereunder. 
Each Holder will cause any proposed purchaser, assignee, transferee, or
pledgee of Registrable Securities held by the Holder to agree in writing to
take and hold such securities subject to the provisions and on conditions
specified in this Agreement.


(b)   Each certificate representing Registrable
Securities shall (unless otherwise permitted by the provisions of this
Agreement) be stamped or otherwise imprinted with a legend substantially
similar to the following (in addition to any legend required under applicable
state securities laws):


THE SECURITIES
REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT AND APPLICABLE LAWS.


THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
SET FORTH IN AN INVESTOR RIGHTS AGREEMENT TO WHICH THE ORIGINAL HOLDER OF THESE
SHARES WAS PARTY, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF
THE COMPANY. SUCH RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SHARES.


Each Holder consents to
the Company making a notation on its records and giving instructions to any
transfer agent to implement the restrictions on transfer established in this
Agreement.


(c)   The Company shall be obligated to reissue
unlegended certificates at the request of any Holder thereof if the Holder
shall have (i) obtained an opinion of counsel at such Holder’s expense
(which counsel may be counsel to the Company) reasonably acceptable to the
Company to the effect that the securities proposed to be disposed of may
lawfully be so disposed of without 


 


2

















 


registration,
qualification or legend, and (ii) delivered such securities to the Company or
its transfer agent.


(d)   Any legend endorsed on an instrument pursuant
to applicable state securities laws and the stop-transfer instructions with
respect to such securities shall be removed upon receipt by the Company of an
order of the appropriate state securities authority authorizing such removal.


1.2          Requested
Registration.


(a)   Request for Registration.  If the Company shall receive from Initiating
Holders, at any time or times not earlier than the earlier of (i) March 4,
2005, and (ii) 180 days after the closing of the Qualified Public
Offering, a written request that the Company effect any registration with
respect to at least 20% of the Registrable Securities (or such lesser number of
shares as shall yield an aggregate offering price of not less than $5,000,000),
the Company will (A) promptly give written notice of the proposed registration
to all other Holders, and (B) as soon as practicable, use its reasonable
best efforts to effect such registration (including, without limitation, filing
post-effective amendments, appropriate qualifications under applicable blue sky
or other state securities laws, and appropriate compliance with the Securities
Act) as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
a written request received by the Company within 20 days after such written
notice from the Company is mailed or delivered.


The Company shall not be
obligated to effect, or to take any action to effect, any such registration
pursuant to this Section 1.2:


(A)  In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification, or compliance, unless the Company
is already subject to service in such jurisdiction and except as may be
required by the Securities Act;


(B)   After the Company has initiated two (2)
such registrations pursuant to this Section 1.2, excluding registrations
that (i) are not declared or ordered effective, (ii) are not effective for a
continuous period of at least one hundred twenty (120) days or such shorter
period ending when all the Registrable Securities for which the Holders have
requested registration in accordance herewith have been sold in accordance with
such registration; provided, that a
trading black-out shall not be deemed to interfere with the continuity of such
period, (iii) are withdrawn by the Company or as a result of action or inaction
of the Company or, subject to Section 1.4 below, for any other reason except
for the voluntary decision of the Holders to terminate the registration after
the request for such registration has been delivered to the Company, or (iv) are
subject to an underwriting agreement in which less than fifty percent (50%) of
the number of Registrable Securities requested to be sold by the Holders are
included;


(C)   During the period starting with the date 60
days prior to the Company’s good faith estimate of the date of filing of, and
ending on a date 180 days after the effective date of, a Company-initiated
registration subject to Section 1.3 below; provided that the 


 


3

















 


Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective; or


(D)  If the Initiating Holders propose to dispose
of shares of Registrable Securities which may be immediately registered on Form
S-3 pursuant to a request made under Section 1.5 below.


(b)   Subject to the foregoing clauses (A) through
(D), the Company shall file a registration statement covering the Registrable
Securities so requested to be registered as soon as practicable after receipt
of the request or requests of the Initiating Holders; provided, however, that if
(i) in the good faith judgment of the Board of Directors of the Company,
such registration would be seriously detrimental to the Company and the Board
of Directors of the Company concludes, as a result, that it is in the best
interests of the Company to defer the filing of such registration statement at
such time, and (ii) the Company shall furnish to such Holders a
certificate signed by the President of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company for such registration statement to be filed in the
near future and that it is, therefore, in the best interests of the Company to
defer the filing of such registration statement, then the Company shall have
the right to defer such filing (except as provided in clause (C) above) for a
period of not more than 90 days after receipt of the request of the
Initiating Holders, and, provided further that the Company shall
not defer its obligation in this manner more than once in any 12-month period;
and, provided further that the
Company shall not register any securities for the account of itself or any
other shareholder during such 90-day period, other than a registration relating
solely to employee benefit plans, a registration relating to the offer and sale
of debt securities, a registration relating to a corporate reorganization or
other transaction on Form S-4, or a registration contemplated in Section
1.2(a)(C).


The registration
statement filed pursuant to the request of the Initiating Holders may, subject
to the provisions of Section 1.2(d), include other securities of the
Company, with respect to which registration rights have been granted, and may
include securities of the Company being sold for the account of the Company.


(c)   Underwriting.  If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as part of their request made
pursuant to Section 1.2(a) and the Company shall include such information
in the written notice referred to in Section 1.2(a).  The right of any Holder to registration
pursuant to Section 1.2 shall be conditioned upon such Holder’s participation
in such underwriting and the inclusion of such Holder’s Registrable Securities
in the underwriting (unless otherwise mutually agreed by a majority in interest
of the Initiating Holders and such Holder with respect to such participation
and inclusion) to the extent provided herein. 
A Holder may elect to include in such underwriting all or a part of the
Registrable Securities such Holder holds.


(d)   Procedures.  If the Company shall request inclusion in any registration
pursuant to Section 1.2 of securities being sold for its own account, or
if other persons shall request inclusion in any registration pursuant to
Section 1.2, the Initiating Holders shall, on behalf of all Holders, offer
to include such securities in the underwriting and may condition such offer on
their acceptance of the further applicable provisions of this Section 1
(including Section 1.12 below). 
The Company shall (together with all Holders and other persons proposing
to distribute their securities through such 


 


4

















 


underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Company,
subject to the reasonable approval of a majority in interest of the Initiating
Holders, which underwriter shall be a nationally recognized investment banking
firm.  Notwithstanding any other
provision of this Section 1.2, if the representative of the underwriters
advises the Initiating Holders in writing that marketing factors require a
limitation (the “Underwriter’s
Limitation”) on the number of shares to be underwritten, the
Initiating Holders shall so advise the Company and all Holders of Registrable
Securities whose securities would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities and other securities that
may be included in the registration and underwriting shall be allocated in the
following manner:  First, the securities
of the Company and other third parties requesting inclusion in any such
requested registration shall be excluded from such registration and
underwriting to the extent required by such Underwriter’s Limitation.  If, after fully excluding the securities of
the Company from such underwriting and registration a further reduction in the
number of shares to be included in such underwriting and registration is
required, the number of shares that may be included in the registration and
underwriting shall be allocated among all Holders of Registrable Securities in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by each Holder at the time of the filing of the registration
statement.  No Registrable Securities or
any other securities excluded from the underwriting by reason of the
Underwriter’s Limitation shall be included in such registration.  If the Company or any Holder in its sole
discretion disapproves of the terms of the underwriting, it may elect to
withdraw therefrom by written notice to the underwriter and the Initiating
Holders.  The securities so withdrawn
shall also be withdrawn from registration.


1.3          Company Registration.


(a)   If the Company shall determine to register
any of its securities either for its own account or the account of a security
holder or holders exercising their respective demand registration rights (other
than pursuant to Section 1.2 or 1.5 hereof), other than (v) a registration
related to its initial public offering, (w) a registration relating solely to
employee benefit plans, (x) a registration relating to the offer and sale of
debt securities, (y) or a registration relating to a corporate reorganization
or other transaction on Form S-4, or (z) a registration on any
registration form that does not permit secondary sales, the Company will:


(i)            promptly give to each Holder written
notice thereof; and


(ii)           use its reasonable best efforts to
include in such registration (and any related qualification under state
securities laws or other compliance), except as set forth in Section 1.3(b)
below, and in any underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made by any Holder and received by
the Company within fifteen (15) days after the written notice from the Company
described in clause (i) above is mailed or delivered by the Company.  Such written request may specify all or a
part of a Holder’s Registrable Securities.


(b)   Underwriting.  If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 1.3(a)(i).  In
such event, the right of any Holder to registration pursuant to this Section 1.3
shall be conditioned upon such Holder’s participation in 


 


5

















 


such underwriting and the
inclusion of such Holder’s Registrable Securities in the underwriting to the
extent provided herein.  All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders of securities of the Company
with registration rights to participate therein distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected by the
Company.


Notwithstanding any other
provision of this Section 1.3, if the underwriter or Holders of a majority
of the Registrable Securities advise the Company in writing that marketing
factors require an Underwriter’s Limitation on the number of shares to be
underwritten, the Company may (subject to the allocation priority set forth
below) limit the number of Registrable Securities to be included in the
registration and underwriting.  In such
event, the Company shall so advise all Holders requesting registration and the
number of shares or securities that are entitled to be included in the
registration and underwriting shall be allocated in the following manner:
First, the number of Registrable Securities that shall be included in the
registration and underwriting shall be reduced to the extent required by the
Underwriter’s Limitation, with such reduction being allocated among Holders
proposing to include Registrable Securities in such registration in proportion,
as nearly as practicable, to the number of shares of Registrable Securities
held by each Holder; provided, however, that the number of Registrable
Securities to be included in the registration shall not be reduced to less than
30% of the total number of shares included in such registration.  If, after reducing the number of Registrable
Securities to be included in such registration or underwriting to the full
extent permitted in this section, a further reduction in the number of shares
to be included in such underwriting and registration is required, then the
number of securities of the Company that shall be included in such registration
and underwriting shall be reduced to the extent required by the Underwriter’s
Limitation.  If any Holder disapproves
of the terms of any such underwriting, such Holder may elect to withdraw
therefrom by written notice to the Company and the underwriter.  Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.  To facilitate the
allocation of shares in accordance with the above provisions, the Company or
the underwriter(s) may round the number of shares allocated to any Holder to
the nearest 100 shares.


(c)   Right to Terminate Registration.  The Company shall have the right to
terminate or withdraw any registration initiated by it under this
Section 1.3 prior to the effectiveness of such registration whether or not
any Holder has elected to include securities in such registration.


1.4          Expenses of Registration.  All Registration Expenses and reasonable fees
of one counsel for the selling shareholders incurred in connection with any
registration, qualification or compliance pursuant to Sections 1.2 and 1.3
above and Section 1.5 below shall be borne by the Company; provided,
however, that the Company shall not bear expenses of the selling
shareholders in excess of $25,000 per registration; provided, further, that that the Company shall not be
obligated to pay Registration Expenses and the fees of the one counsel for the
selling shareholders for any registration proceeding begun pursuant to
Section 1.5, if, in a given twelve-month period, the Company has
effected two (2) such registrations in such period.  All Selling Expenses relating to securities so registered shall
be borne by the holders of such securities pro rata on the basis of the number
of shares of securities so registered on their behalf, as shall any other
expenses in connection with the registration required to be borne by the
Holders of such securities.  The Holders
shall be required, however, to pay for expenses of any registration proceeding
begun pursuant to Section 1.2 


 


6

















 


or 1.5, the
request of which has been subsequently withdrawn by the Holders holding at
least a majority of the Registrable Securities unless such Holders agree to
forfeit their right to one requested registration pursuant to Section 1.2
or Section 1.5, as applicable (in which event such right shall be
forfeited by all Holders); provided, however,
if the Holders have learned of a material adverse change in the condition,
business or prospects of the Company from that known to the Holders at the time
of their request and have withdrawn the request due to and with reasonable
promptness following having learned of such material adverse change, then the
Holders shall not be required to pay any of such registration expenses or
forfeit such registration rights; provided,
further, however, that a change in stock price alone will not be
considered a material adverse change for the purposes of this Section 1.4.  If the Holders are required to pay the
Registration Expenses, such expenses shall be borne by the holders of
securities (including Registrable Securities) requesting such registration in
proportion to the number of shares for which registration was requested.


1.5          Registration on Form S-3.


(a)   After the Qualified Public Offering, the
Company shall use its commercially reasonable efforts to qualify for
registration on Form S-3 or any comparable or successor form or forms.  After the Company has qualified for the use
of Form S-3, in addition to the rights contained in the foregoing provisions of
this Section 1, the Holders of at least 20% of the Registrable Securities
shall have the right to request registrations on Form S-3 (such requests shall
be in writing and shall state the number of shares of Registrable Securities to
be disposed of and the intended methods of disposition of such shares by such
Holder or Holders), provided, however, that the Company shall
not be obligated to effect, or take any action to effect, any such registration
(i) if the Holders, together with the holders of any other securities of
the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) on Form S-3 at an
aggregate price to the public of less than $l,000,000, (ii) in the
circumstances described in clauses (A) and (C) of Section 1.2(a), or
(iii) if the Company shall furnish the certification described in
Section 1.2(b) (but subject to the limitations set forth therein).


(b)   If a request complying with the requirements
of Section 1.5(a) hereof is delivered to the Company, the provisions of
Sections 1.2(a) relating to the provision of notice to Holders, the
provision to such Holders of an opportunity to request in writing that
Registrable Securities be included in the registration and the inclusion of
other securities of the Company in such registration hereof shall apply to such
registration.  If the registration is
for an underwritten offering, the provisions of Sections 1.2(c) and 1.2(d)
hereof shall apply to such registration.


1.6          Registration Procedures.  In the case of each registration effected by the
Company pursuant to Section 1, the Company will keep each Holder advised
in writing as to the initiation of each registration and as to the completion
thereof.  At its expense, the Company
will, as expeditiously as reasonably possible:


(a)   Use its commercially reasonably efforts to
keep such registration effective for a period of 120 days or until the Holder
or Holders have completed the distribution described in the registration
statement relating thereto, whichever first occurs; provided that (i) such 120-day
period shall be extended for a period of time equal to the period the Holder
refrains from selling any securities included in such registration at the
request of an underwriter of Common Stock (or other securities) of the Company,
and (ii) in the case of any registration statement of Form S-3 that 


 


7

















 


contemplates a
distribution of securities on a delayed or continuous basis, such 120-day
period shall be extended, if necessary, to keep the registration statement
effective until either all such Registrable Securities are sold or the
registration statement has been effective for a period of 180 days calendar
days;


(b)   Prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;


(c)   Furnish such number of prospectuses and other
documents incident thereto, including any amendment or supplement to the
prospectus, as a Holder from time to time may reasonably request;


(d)   Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act on the happening
of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statement therein not misleading in light of the circumstances then
existing;


(e)   Use its commercially reasonable efforts to
register and qualify the securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions as shall be
reasonably requested by the Holders; provided
that the Company shall not be required in connection therewith or as
a condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;


(f)    Use its commercially reasonable efforts to
cause all such Registrable Securities registered pursuant to this Agreement to
be listed on each securities exchange on which similar securities issued by the
Company are then listed;


(g)   Provide a transfer agent and registrar for
all Registrable Securities registered pursuant hereunder and a CUSIP number for
all such Registrable Securities, in each case not later than the effective date
of such registration; and


(h)   In connection with any underwritten offering
pursuant to a registration statement filed pursuant to Section 1.2 hereof,
the Company will enter into an underwriting agreement in form reasonably
necessary to effect the offer and sale of Common Stock; provided that such underwriting agreement
contains reasonable and customary provisions; and provided further, that each Holder participating in such
underwriting shall also enter into and perform its obligations under such an
agreement.


1.7          Indemnification.


(a)   The Company will indemnify each Holder, each
of its officers, directors and partners, legal counsel, and accountants and
each person controlling such Holder within the meaning of Section 15 of
the Securities Act, with respect to which registration, qualification, or
compliance has been effected pursuant to this Section 1, and each
underwriter, if any, and each person who 


 


8

















 


controls within the
meaning of Section 15 of the Securities Act any underwriter, against all
expenses, claims, losses, damages, and liabilities (or actions, proceedings, or
settlements in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any prospectus,
offering circular, or other document (including any related registration
statement, notification, or the like) incident to any such registration,
qualification, or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by the Company of
the Securities Act or other federal or state securities law or rule or
regulation promulgated  thereunder
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification, or compliance,
and will reimburse each such Holder, each of its officers, directors, partners,
legal counsel, and accountants and each person controlling such Holder, each
such underwriter, and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with investigating
and defending or settling any such claim, loss, damage, liability, or action,
provided that the Company will not be liable in any such case to the extent
that any such claim, loss, damage, liability, or expense arises out of or is
based on any untrue statement or omission based upon written information
furnished to the Company by such Holder or underwriter and stated to be
specifically for use therein.  It is
agreed that the indemnity agreement contained in this Section 1.7(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld).


(b)   Each Holder will, if Registrable Securities
held by such Holder are included in the securities as to which such
registration, qualification, or compliance is being effected, severally (but
not jointly) indemnify the Company, each of its directors, officers, partners,
legal counsel, and accountants and each underwriter, if any, of the Company’s
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, each other such Holder, and each of their officers, directors,
and partners, and each person controlling such Holder, against all claims,
losses, damages and liabilities (or actions, proceedings or settlements in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular, or other document, or any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Company and such Holders, directors, officers, partners, legal
counsel, and accountants, persons, underwriters, or control persons for any
legal or any other expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability, or action, in each case
to the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular, or other document in
reliance upon and in conformity with written information furnished to the
Company by such Holder and stated to be specifically for use therein; provided, however, that the obligations of
such Holder hereunder shall not apply to amounts paid in settlement of any such
claims, losses, damages, or liabilities (or actions in respect thereof) if such
settlement is effected without the consent of such Holder (which consent shall
not be unreasonably withheld); and provided that in no event shall any
indemnity under this Section 1.7 of any Holder exceed the net proceeds
from the offering received by such Holder.


 


9

















 


(c)   Each party entitled to indemnification under
this Section 1.7 (the “Indemnified Party”) shall give notice to the party
required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of such claim or
any litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party’s expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 1, to the extent
such failure is not prejudicial.  No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.  Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.


(d)   If the indemnification provided for in this
Section 1.7 is held by a court of competent jurisdiction to be unavailable
to an Indemnified Party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the Indemnified
Party on the other in connection with the statements or omissions that resulted
in such loss, liability, claim, damage, or expense as well as any other
relevant equitable considerations.  The
relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact relates
to information supplied by the Indemnifying Party or by the Indemnified Party
and the parties’ relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.


(e)   Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.


1.8          Information by Holder. 
Each Holder of Registrable Securities shall furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification, or compliance
referred to in this Section 1.


1.9          Limitations on Subsequent
Registration Rights.  From and after the date of this Agreement, the
Company shall not, without the prior written consent of the Holders of 65% of
the Registrable Securities, enter into any agreement with any holder or
prospective holder of any securities of the Company giving such holder or
prospective holder any registration rights the terms 


 


10

















 


of which are more
favorable than or senior to the registration rights granted to the Holders
hereunder.


1.10        Rule 144 Reporting. 
With a view to making available the benefits of certain rules and regulations of
the SEC that may permit the sale of the Restricted Securities to the public
without registration, the Company agrees to use its reasonable best efforts to:


(a)   File with the SEC in a timely manner all
reports and other documents required of the Company under the Securities Act
and the Exchange Act at any time after it has become subject to such reporting
requirements;


(b)   So long as a Holder owns any Restricted
Securities, furnish to the Holder forthwith upon written request a written
statement by the Company as to its compliance with the reporting requirements
of Rule 144 (at any time from and after ninety (90) days following the
effective date of the first registration statement filed by the Company for an
offering of its securities to the general public), and of the Securities Act
and the Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed as a Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing a
Holder to sell any such securities without registration.


1.11        Transfer or Assignment of
Registration Rights.  The rights to cause the Company to register
securities granted to a Holder by the Company pursuant to this Section 1
may be transferred or assigned by a Holder to a transferee (i) that
acquires at least 10% of the shares of the Company’s capital stock held by such
Holder or (ii) that is (x) any constituent partner, member or
shareholder of such Holder if such Holder is a partnership, limited liability
company or corporation, (y) a family of such Holder or a trust for the
benefit of such Investor, such Holder’s spouse and/or such Holder’s issue or
(z) any corporation, partnership, limited liability company or other
entity of which at least a 75% interest is owned or controlled, directly or
indirectly, by one or more of the persons described in (x) or (y) of this
Section 1.11, provided, that the Company is given written
notice at the time of or within a reasonable time after said transfer or
assignment, stating the name and address of the transferee or assignee and
identifying the securities with respect to which such registration rights are
being transferred or assigned, and, provided, further, that the transferee or
assignee of such rights assumes in writing the obligations of such Holder under
this Section 1.  Notwithstanding
the foregoing, or anything to the contrary in this Agreement, the right to transfer
registration rights provided in this Section 1.1 will not apply to Eileen
Simmons. 
Notwithstanding any of the foregoing, for a period of one (1)
year following the Qualified Public Offering, Otter Capital, LLC (“Otter Capital”) shall
be the deemed owner of any Registrable Securities then owned by Haverford
Internet LLC and Patrick M. Byrne for purposes of allocating among Holders the
right to include Registrable Securities in a registration pursuant to this
Section 1 that is the subject of an Underwriter’s Limitation and any transferee
or assignee of such Registrable Securities owned by Haverford Internet LLC and
Patrick M. Byrne shall assume in writing the obligations of such transferor
under this Section 1.11.


1.12        “Market Standoff” Agreement.  If requested by the Company and an underwriter
of Common Stock (or other securities) of the Company, each Investor shall not
sell or otherwise transfer or dispose of any Common Stock (or other securities)
of the Company held by such Investor 


 


11

















 


(other than those
included in the registration) during the 180-day period following the effective
date of a registration statement of the Company filed under the Securities Act,
provided
that (a) such agreement shall only apply to the Company’s initial
public offering, (b) all officers, directors and affiliates of such
officers and directors are bound by and have entered into similar agreements,
and (c) such agreement shall not apply to the sale of any shares acquired by a
Holder in open market transactions after the date of the final prospectus for
such initial public offering.  The
Company may impose stop-transfer instructions and may stamp each such
certificate with the second legend set forth in Section 1.1(b) hereof with
respect to the shares of Common Stock (or other securities) subject to the
foregoing restriction until the end of such 180-day period.  Each Holder agrees to execute a market
standoff agreement with such underwriters in customary form consistent with the
provisions of this Section 1.12. 
Any discretionary waiver or termination of the above market standoff
agreement restrictions by the Company or representatives of the underwriters
shall apply to all persons and entities subject to such agreements pro rata
based on the number of shares subject to such agreements.  The Company agrees to use commercially
reasonable efforts to ensure that all shares of its capital stock (upon
issuance) shall be subject to a market standoff provision at least as
restrictive as set forth above.


1.13        Delay of Registration. 
No Holder shall have any right to take any action to restrain, enjoin, or
otherwise delay any registration as the result of any controversy that might
arise with respect to the interpretation or implementation of this Section 1.


1.14        Termination of Registration Rights.  The right of any Holder to request registration
or inclusion in any registration pursuant to Section 1.2, Section 1.3
or Section 1.5 above shall terminate (a) on the closing of the Company’s
Qualified Public Offering, so long as all shares of Registrable
Securities held or entitled to be held upon conversion by such Holder may
immediately be sold under Rule 144 during any 90-day period, or (b) the
earlier of (i) such date after the closing of the Company’s initial public
offering registered under the Securities Act as all shares of Registrable
Securities held or entitled to be held upon conversion by such Holder (together
with any affiliate of the Holder with whom such Holder must aggregate its sales
under Rule 144) may immediately be sold under Rule 144(k), and (ii) 5
years after the closing of the Company’s initial public offering registered
under the Securities Act.


SECTION 2


Information and
Inspection Covenants; Voting Agreement


2.1          Company Covenants.


(a)   Basic Financial Information.  So long as any shares of Preferred Stock
remain outstanding, the Company shall furnish the following reports to each
Investor:


(i)            as soon as practicable, but in any
event within 90 days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company and its subsidiaries, if any, as at
the end of such fiscal year, and consolidated statements of income,
consolidated statements of equity and consolidated statements of cash flows of
the Company and its subsidiaries, if any, for such year, such financial
statements to be in reasonable detail, prepared in accordance with generally 


 


12

















 


accepted accounting
principles consistently applied, and audited and certified by independent
public accountants selected by the Company which shall be reasonably acceptable
to the Investors;


(ii)           as soon as practicable, but in any
event within 15 days after the end of the first, second, and third quarterly
accounting periods in each fiscal year of the Company, an unaudited
consolidated balance sheet of the Company and its subsidiaries, if any, as of
the end of each such quarterly period, and unaudited consolidated statements of
income and cash flows of the Company and its subsidiaries, if any, for each
such period;


(iii)          by January 15th of each
fiscal year, the financial budget and business and strategic plan of the next
fiscal year that will be submitted for approval to the Company’s Board of
Directors no later than 30 days following the beginning of such fiscal year,
and as soon as practicable during the course of each fiscal year, any
revisions, amendments or other changes to the financial budget and strategic
business plan for such fiscal year.


(iv)           such other information relating to
the financial condition, business or corporate affairs of the Company as the
Investor may from time to time request; provided,
however, that the Company shall not be obligated under this
subsection (iv) to provide information that it determines in good faith to be
subject to a confidentiality obligation to a third party.


                With respect to the financial statements called for
in subsection (ii) of this Section 2.1, the Company shall, concurrent with the
delivery of such financial statements, provide an instrument executed by the
Chief Financial Officer or President of the Company certifying that such
financials were prepared in accordance with generally accepted accounting
principals consistently applied with prior practice for earlier periods (with
the exception of footnotes that may be required by generally accepted
accounting principles) and fairly present the financial condition of the
Company and its results of operation for the period specified, subject to
year-end audit adjustment.


(b)   Inspection Rights. The Company shall
afford to each Investor and to such Investor’s accountants and counsel, upon 24
hours’ notice, reasonable access during normal business hours to all of the
Company’s respective properties, books and records.  Each Investor shall have such other access to management and
information as is necessary for it to comply with applicable laws and
regulations and reporting obligations. 
The Company shall not be obligated under this subsection (b) to provide
information that it determines in good faith to be subject to a confidentiality
obligation to a third party.


(c)   Directors and Officers Liability Insurance.  The Company shall, as soon as reasonably
practicable, obtain and thereafter maintain directors and officers liability
insurance in such scope and in such amount as is customary for a similarly
situated business.


(d)   Key Man Life Insurance.  The Company shall use commercially
reasonable efforts to obtain and maintain key man life insurance of the benefit
of the Company on Patrick Byrne for coverage in the amount of $2,000,000.


(e)   Insurance.  The Company shall keep any and all of its assets that are of an
insurable character insured against loss or damage by fire, explosion and other
risks customarily insured against by companies in the Company’s line of
business, in reasonable amounts.


 


13

















 


(f)    Books and Records.  The Company shall maintain books and records
of account in which full, true and correct entries will be made of all dealings
or transactions in relation to its business and affairs in accordance with
generally accepted accounting principles applied on a consistent basis.


(g)   Transferability of Certain Rights.  The rights granted by the Company pursuant
to this Section 2.1(a) and 2.1(b) may be transferred or assigned by an
Investor to a transferee (i) that acquires at least 10% of the shares of the
Company’s capital stock held by such Investor or (ii) that is (x) any
constituent partner, member or shareholder of such Investor if such Investor is
a partnership, limited liability company or corporation, (y) a family of
such Investor or a trust for the benefit of such Investor, such Investor’s
spouse and/or such Investor’s issue or (z) any corporation, partnership,
limited liability company or other entity of which at least a 75% interest is
owned or controlled, directly or indirectly, by one or more of the persons
described in (x) or (y), provided that the Company is given written
notice at the time of or within a reasonable time after said transfer or
assignment, stating the name and address of the transferee or assignee and
identifying the securities with respect to which such information rights are
being transferred or assigned, and, provided further that the transferee or
assignee of such rights assumes in writing the obligations of such Investor
under this Agreement.


2.2          Termination of Covenants .  The covenants set forth in this Section 2
shall terminate upon and be of no further force and effect upon the earlier to
occur of (a) the closing of the Company’s Qualified Public Offering or
(b) the closing of an Acquisition.


SECTION 3


Right of First Offer


3.1          Right of First Offer. 
The Company hereby grants to each Investor a right of first offer to purchase a
pro rata share of New Securities (as defined in this Section 3.1) which
the Company may, from time to time, propose to sell and issue.  A Investor’s pro rata share, for purposes of
this Section 3, is the ratio of the number of shares of Common Stock owned
by such Investor immediately prior to the issuance of New Securities, assuming
full conversion of the Preferred Stock and exercise of any option or warrant
held by such Investor, to the total number of shares of Common Stock
outstanding immediately prior to the issuance of New Securities, assuming full
conversion of the Preferred Stock and exercise of all outstanding convertible
securities, rights, options and warrants to acquire Common Stock of the
Company.  Each Investor shall have a
right of over-allotment such that if any Investor fails to exercise its right
hereunder to purchase its pro rata share of New Securities, the other Investors
may purchase the non-purchasing Investor’s portion on a pro rata basis within
15 days from the date such non-purchasing Investor fails to exercise its right
hereunder to purchase its pro rata share of New Securities.  This right of first offer shall be subject
to the following provisions:


(a)   “New Securities” shall mean any capital stock (including
Common Stock and/or Preferred Stock) of the Company whether now authorized or
not, and rights, options or warrants to purchase such capital stock, and
securities of any type whatsoever that are, or may become, convertible into
capital stock; provided that the term “New Securities” does not include:


 


14

















 


(i)            securities purchased under the
Purchase Agreement;


(ii)           Conversion Stock;


(iii)          79,671,136 shares of Common Stock
issued or issuable to employees, consultants, directors or other service
providers for compensatory purposes and in accordance with stock plans approved
by the Board of Directors, or upon exercise of options or warrants granted to
such parties pursuant to any such plans (net of any repurchase of such shares
or cancellations or expiration of such options);


(iv)          shares of Common Stock issued upon the
exercise or conversion of warrants, options or other convertible securities of
the Company outstanding as of the date of this Agreement (other than options
outstanding pursuant to stock plans covered under Section 3.1(a)(iii) above);


(v)           shares of Common Stock issued or
issuable pursuant to a stock split, as a dividend or distribution on Preferred
Stock;


(vi)          shares of Common Stock issued in a
Qualified Public Offering;


(vii)         shares of Common Stock issued or
issuable pursuant to the acquisition of another corporation by the Company by
merger, purchaser of substantially all of the assets or other reorganization
approved by a majority of the Board of Directors;


(viii)        shares of Common Stock issued or issuable
pursuant to bona fide equipment lease and bank financing arrangements approved
by a majority of the Board of Directors;


(ix)           shares of Common Stock issued or
issuable in connection with transactions of a strategic nature for which the
primary purpose is other than raising equity capital and which are approved by
a majority of the Board of Directors;


(x)            shares of Common Stock which the
Holders of sixty-five percent (65%) of the then outstanding Preferred Stock and
Conversion Stock agree in writing shall not constitute “New Securities;”;


(xi)           any right, option or warrant to
acquire any security convertible into the securities excluded from the
definition of New Securities pursuant to subsections (i) through (xi)
above; and


(xii)          the issuance of Common Stock upon
conversion, exchange, or exercise of rights of any security previously offered
to the Investors pursuant to this Section 3.


(b)   In the event the Company proposes to
undertake an issuance of New Securities, it shall give each Investor written
notice of its intention, describing the type of New Securities, and their price
and the general terms upon which the Company proposes to issue the same.  Each Investor shall have 15 days after any
such notice is mailed or delivered to agree to purchase such Investor’s pro
rata share of such New Securities for the price and upon the terms specified in
the 


 


15

















 


notice by giving written
notice to the Company and stating therein the quantity of New Securities to be
purchased.


(c)   In the event the Investors fail to exercise
fully the right of first offer within such 15-day period and after the
expiration of the additional 15-day period for the exercise of the
over-allotment provisions of this Section 3, the Company shall have 90
days thereafter to sell the New Securities respecting which the Investors’
right of first offer set forth in this Section 3.1 was not exercised, at a
price and upon terms no more favorable to the purchasers thereof than specified
in the Company’s notice to Investors pursuant to Section 3.1(b)
above.  In the event the Company has not
sold within such 90-day period the New Securities in accordance with the
foregoing, the Company shall not thereafter issue or sell any New Securities,
without first again offering such securities to the Investors in the manner
provided in Section 3.1(b) above.


(d)   The right of first offer granted pursuant to
this Section 3 shall expire upon, and shall not be applicable to, the
earlier to occur of (i) the Company’s Qualified Public Offering or
(ii) an Acquisition.


3.2          Transfer or Assignment of Rights of
First Offer.  The rights contained in
Section 3 of this Agreement may be transferred or assigned by an Investor
to a transferee (i) that acquires at least 10% of the shares of the Company’s
capital stock held by such Investor or (ii) that is (x) any constituent
partner, member or shareholder of such Investor if such Investor is a
partnership, limited liability company or corporation, (y) a family of
such Investor or a trust for the benefit of such Investor, such Investor’s
spouse and/or such Investor’s issue or (z) any corporation, partnership,
limited liability company or other entity of which at least a 75% interest is
owned or controlled, directly or indirectly, by one or more of the persons
described in (x) or (y) of this Section 3.2, provided that the Company is
given written notice at the time of or within a reasonable time after said
transfer or assignment, stating the name and address of the transferee or
assignee and identifying the securities with respect to which such rights are
being transferred or assigned, and, provided further that the transferee or
assignee of such rights assumes in writing the obligations of such Investor
under this Agreement.


SECTION 4


Miscellaneous


4.1          Certain Definitions. 
As used in this Agreement, the following terms shall have the meanings set
forth below:


(a)   the term “Acquisition” shall mean (i) a
consolidation or merger of the Company or other transaction or series of
related transactions in which the shareholders of the Company immediately prior
to such merger, consolidation or transaction(s) hold immediately after such
merger, consolidation or transaction(s) less than 50% of the voting power of
the surviving or resulting entity (or its parent, as applicable) or (ii) a
sale or other disposition of all or substantially all of the assets of the
Company.


(b)   the term “Restated Articles” shall mean the Company’s
Articles of Incorporation, as amended;


 


16

















 


(c)   the term “Board of Directors” shall mean the Company’s
board of directors;


(d)   the term “SEC” shall mean the U.S. Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act;


(e)   the term “Closing” shall mean the date that the
Company issues and sells the Preferred Stock to the Investors pursuant to the
Purchase Agreement.


(f)    the term “Common Stock” shall mean the Company’s common
stock, without par value;


(g)   the term “Conversion Stock” shall mean the Common Stock
issued or issuable on conversion of the Preferred Stock.


(h)   the term “Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended, or any similar successor federal statute and
the rules and regulations thereunder, all as the same shall be in effect from
time to time;


(i)    the term “Holder” shall mean any party to this
agreement who holds Registrable Securities and any holder of Registrable
Securities to whom the registration rights conferred by this Agreement have been
transferred in compliance with Section 1.1 (Transfer Restrictions) and
Section 1.11 (Transfer or Assignment of Registration Rights) above.


(j)    the term “Indemnified Party” shall have the meaning set
forth in Section 1.7(c) above;


(k)   the term “Indemnifying Party” shall have the meaning
set forth in Section 1.7(c) above;


(l)    the term “Initiating Holders” shall mean any Holder or
Holders who in the aggregate hold not less than 30% of the then outstanding
Registrable Securities;


(m)  the term “New Securities” shall have the meaning set forth in
Section 3.1(a) above;


(n)   the term “Preferred Stock” shall mean the Company’s
Series A Preferred Stock, without par value.


(o)   the term “Purchase Agreement” shall have the meaning
set forth in the Recitals of this Agreement;


(p)   the term “Qualified Public Offering” shall mean a
firmly underwritten public offering of the Company pursuant to an effective
registration statement filed under the Securities Act, covering the offer and
sale of Common Stock for the account of the Company with an offering price per
share of $0.3648 (as adjusted for stock splits, stock dividends,
recapitalizations and the like) and aggregate offering proceeds to the Company
of not less than $20,000,000 (net of underwriting discounts and commissions)
and a listing of the Company’s equity securities on the NASDAQ-NMS or other
national exchange;


 


17

















 


(q)   the term “Registrable Securities” shall mean (i)
997,397 (adjusted for any stock dividend, split, combination, reclassification
or recapitalization) shares of Common Stock held by Eileen Simmons, other than
shares for which registration rights have terminated pursuant to Section 1.14
hereof, (ii) the Conversion Stock, and (ii) any Common Stock issued
as a dividend or other distribution with respect to or in exchange for or in
replacement of the shares described in (i) and (ii) above; provided, however, that
Registrable Securities shall not include any shares of Common Stock
(A) which have previously been registered or which have been sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction or (B) which are held by any Holder if such shares
held by such Holder are available for sale pursuant to Rule 144 (except to the
extent the standoff provision limits such Holder’s rights to sell following the
Qualified Public Offering), or (C) which have been sold in a private
transaction in which the transferor’s rights under this Agreement are not
assigned;


(r)    the terms “register,” “registered” and “registration” shall refer to a registration
effected by preparing and filing a registration statement in compliance with
the Securities Act and applicable rules and regulations thereunder, and the
declaration or ordering of the effectiveness of such registration statement;


(s)   the term “Registration Expenses” shall mean all
expenses incurred in effecting any registration pursuant to this Agreement,
including, without limitation, all registration, qualification, and filing
fees, printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, and expenses of any regular or special
audits incident to or required by any such registration, but shall not include
Selling Expenses, the fees and disbursements of counsel for the Holders, except
as otherwise specified in Section 1.4, or the compensation of regular
employees of the Company (which shall be paid in any event by the Company);


(t)    the term “Restricted Securities” shall mean any
Registrable Securities required to bear the first legend set forth in
Section 1.1(b) above;


(u)   the term “Rule 144” shall mean Rule 144 as
promulgated by the SEC under the Securities Act, as such Rule may be amended
from time to time, or any similar successor rule that may be promulgated by the
SEC;


(v)   the term “Securities Act” shall mean the Securities Act
of 1933, as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to time;


(w)  the term “Seller(s)” shall have the meaning set forth in
Section 3.2 above;


(x)    the term “Selling Expenses” shall mean all underwriting
discounts, selling commissions and stock transfer taxes applicable to the sale
of Registrable Securities and fees and disbursements of counsel for any Holder
(other than the fees and disbursements of counsel included in Registration
Expenses);


4.2          Amendment.  Except as provided in
Section 1.15 and as otherwise expressly provided herein, neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument referencing this Agreement and signed by the



 


18

















 


Company and the
Investors holding a majority of the Registrable Securities (excluding any of
such shares that have been sold to the public or pursuant to Rule 144); provided, that Investors purchasing shares
in a Closing after the Initial Closing (as that term is defined in the Purchase
Agreement) may become parties to this Agreement and be deemed an “Investor”
hereunder without any amendment of this Agreement pursuant to this paragraph or
any consent or approval of any other Investor by executing and delivering an
additional counterpart signature page to this Agreement; provided, further, that an amendment to
the last sentence of Section 1.11 above may be effected by and only by a
written instrument signed by the Company, Otter Capital, Haverford Internet LLC
and Patrick M. Byrne.  Any such
amendment, waiver, discharge or termination effected in accordance with this
paragraph shall be binding upon each Holder and each future holder of all such
securities of Holder. Each Holder acknowledges that by the operation of this
paragraph, the holders of a majority of the Common Stock issued or issuable
upon conversion of the shares issued pursuant to the Purchase Agreement
(excluding any of such shares that have been sold to the public or pursuant to
Rule 144) will have the right and power to diminish or eliminate all
rights of such Investor under this Agreement. 
In addition, the Company may waive performance of any obligation owing
to it other than the market standoff obligations under Section 1.12, as to
some or all of the Holders, or agree to accept alternatives to such
performance, without obtaining the consent of any Holder.  In the event that an underwriting agreement
contains terms differing from this Agreement, as to any such Holder the terms
of such underwriting agreement shall govern. Notwithstanding the foregoing, any
amendment, waiver, or termination of the rights or obligations of the holders
of the Common Stock under Section 2.2 shall require the consent of the
holders of a majority of the Common Stock held by the Common Holders.


4.3          Notices.  All notices and other
communications required or permitted hereunder shall be in writing and shall be
mailed by registered or certified mail, postage prepaid, sent by facsimile or
otherwise delivered by hand or by messenger addressed as follows:


(a)   if to a Holder, at such person’s address or
facsimile number as shown in the Company’s records, as may be updated in
accordance with the provisions hereof.


(b)   if to the Company, at its address or
facsimile number set forth on the cover page of this Agreement and addressed to
the attention of the President, or at such other address or facsimile number as
the Company shall have furnished to the Investors.


Each such notice
or other communication shall for all purposes of this Agreement be treated as
effective or having been given when delivered if delivered personally, or, if
sent by mail, at the earlier of its receipt or 72 hours after the same has been
deposited in a regularly maintained receptacle for the deposit of the United
States mail, addressed and mailed as aforesaid or, if sent by facsimile, upon
confirmation of facsimile transfer.


4.4          Governing Law.  This Agreement shall be governed
in all respects by the internal laws of the State of Utah as applied to
agreements entered into among Utah residents to be performed entirely within
Utah, without regard to principles of conflicts of law.


4.5          Successors and Assigns. 
Except as otherwise provided herein, this Agreement, and any and all rights,
duties and obligations hereunder, shall not be assigned, transferred, delegated
or sublicensed by any Investor without the prior written consent of the
Company.  Any attempt by an 


 


19

















 


Investor without
such permission to assign, transfer, delegate or sublicense any rights, duties
or obligations that arise under this Agreement shall be void.  Subject to the foregoing and except as
otherwise provided herein, the provisions of this Agreement shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties.


4.6          Entire Agreement.  This Agreement and the exhibits
hereto constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof. 
No party hereto shall be liable or bound to any other party in any
manner with regard to the subjects hereof or thereof by any warranties,
representations or covenants except as specifically set forth herein.


4.7          Delays or Omissions. 
Except as expressly provided herein, no delay or omission to exercise any
right, power or remedy accruing to any party to this Agreement upon any breach
or default of any other party under this Agreement shall impair any such right,
power or remedy of such non-defaulting party, nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or of or in
any similar breach or default thereafter occurring, nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring.  Any waiver, permit, consent or approval of any kind or character
on the part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, must be in accordance with Section 4.2 hereof.  All remedies, either under this Agreement or
by law or otherwise afforded to any party to this Agreement, shall be
cumulative and not alternative.


4.8          Severability.  Unless otherwise expressly
provided herein, the rights of the Investors hereunder are several rights, not
rights jointly held with any of the other Investors.  In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision, and the parties agree to negotiate, in good faith, a legal and
enforceable substitute provision which most nearly effects the parties’ intent
in entering into this Agreement.


4.9          Counterparts.  This Agreement may be executed in
any number of counterparts, each of which shall be enforceable against the
parties that execute such counterparts, and all of which together shall
constitute one instrument.


4.10        Expenses.  If any action at law or in equity
is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys’ fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.


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


4.12        Telecopy Execution and Delivery.  A facsimile, telecopy or other reproduction of
this Agreement may be executed by one or more parties hereto, and an executed
copy of this Agreement may be delivered by one or more parties hereto by
facsimile or similar electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes.  At the 


 


20

















 


request of any
party hereto, all parties hereto agree to execute an original of this Agreement
as well as any facsimile, telecopy or other reproduction hereof.


4.13        Jurisdiction; Venue. 
With respect to any disputes arising out of or related to this Agreement, the
parties consent to the exclusive jurisdiction of, and venue in, the state
courts in Salt Lake County in the State of Utah (or in the event of exclusive
federal jurisdiction, the courts of the District of Utah).


4.14        Jury Trial.  EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS
AGREEMENT.


4.15        Further Assurances. 
Each party hereto agrees to execute and deliver, by the proper exercise of its
corporate, limited liability company, partnership or other powers, all such
other and additional instruments and documents and do all such other acts and
things as may be necessary to more fully effectuate this Agreement.


4.16        Confidentiality.  Each Holder acknowledges that the
information received by them pursuant to this Agreement may be confidential and
for its use only, and it will not use such confidential information in
violation of the Exchange Act or reproduce, disclose or disseminate such
information to any other person (other than its employees or agents having a
need to know the contents of such information, and its attorneys), except in
connection with the exercise of rights under this Agreement, unless the Company
has made such information available to the public generally or such Holder is
required to disclose such information by a governmental authority; provided that Holders may provide summary
business, finance and operational information about the Company in their
reports to their equity holders as long as such distributed information is
accompanied by a statement notifying the recipient of the confidential nature
of the information and the restrictions on its use.


(SIGNATURE
PAGES FOLLOW)


 


21

















 


IN WITNESS WHEREOF, this Agreement is executed as of the
date first written above.


 


 


	
   

  	
   

  	
  “COMPANY”

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  OVERSTOCK.COM,
  INC.

  a Utah
  corporation 

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Patrick Byrne

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Patrick
  Byrne

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  "COMMON HOLDERS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/  Patrick Byrne

  	
   

  	
   

  
	
  Patrick
  Byrne

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  HAVERFORD
  INTERNET LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
							



 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]

















 


IN WITNESS WHEREOF, this Agreement is executed as of the
date first written above.


 


 


	
   

  	
   

  	
  “COMPANY”

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  OVERSTOCK.COM,
  INC.

  a Utah
  corporation 

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  "COMMON HOLDERS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Patrick
  Byrne

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  HAVERFORD
  INTERNET LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  John Pettway

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  John
  Pettway

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Manager

  	
   

  	
   

  
							



 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Arran
  Partners, L.P.

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  George Wyper

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Managing
  Member of Wyper Partners, L.L.C.

  	
   

  	
   

  
	
  its
  General

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  James
  R. and Rebecca C. Byrne

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  James R. Byrne         /s/ Rebecca C.
  Byrne

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  John
  Byrne

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  John Byrne

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Terry
  L. Baxter

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Terry L. Baxter

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  C
  & E Investors LLC

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s
  John L. West

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Member—John
  L. West

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  CONTEX
  LTD

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Tim Calveley

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Tim
  Calveley—Agent for CONTEXT LTD

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Haverford
  Internet LLC

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  John Pettway

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  John
  Pettway, Manager

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Stuart
  and Tracy Jenkins

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Stuart Jenkins      /s/ Tracy Jenkins

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Brad
  Kliber

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Brad Kliber

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  David
  Luban and Judith Lichtenberg

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  David Luban

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Judith
  Lichtenberg

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Judith Lichtenberg

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
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  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The
  Gordon S. Macklin Family Trust

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Gordon S. Macklin

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
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  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Otter
  Capital LLC

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  John M. Pasquesi

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  John
  M. Pasquesi, Managing Member

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Rope
  Ferry Associates Ltd.

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Douglas B. Christensen

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  President
  of General Partner

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Arnold-Peter
  C. Weiss, M.D.

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Arnold-Peter C. Weiss, M.D.

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


 


 


	
  "INVESTORS"

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  George
  U. Wyper

  	
   

  	
   

  
	
  Print
  Investor's Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  George U. Wyper

  	
   

  	
   

  
	
  Signature
  of Investor (or authorized signatory

  if
  not an individual)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  and title of authorized signatory, if

  Investor
  is not an individual

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


 


 


 


[Signature Page to Overstock.com Inc. Investor
Rights Agreement]


 

















 


SCHEDULE I


SCHEDULE OF INVESTORS


[Insert Purchasers
under the Purchase Agreement]


 


 

















 


SCHEDULE II


SCHEDULE OF COMMON HOLDERS


 


Patrick Byrne


Haverford Internet LLC


 


 


 


(SIGNATURE
PAGE TO INVESTOR RIGHTS AGREEMENT)