Exhibit 10.1


 


TOLLING AND STANDSTILL AGREEMENT


 


THIS
TOLLING AND STANDSTILL AGREEMENT (this “Agreement”)
is made and entered into by Overstock.com, Inc. (“Overstock”) and the Overstock.com, Inc.
Employee Benefits Committee (the “Committee”),
on behalf of the Overstock.com, Inc. 401(k) Plan (the “Plan”), on and to be effective as of August 31,
2009.


 


WHEREAS,
Overstock has determined that it may have issued more shares of its common
stock (“Common Stock”) to the Plan for the
benefit of Plan participants than have been registered with the Securities and
Exchange Commission for issuance to or in connection with the Plan; and


 


WHEREAS,
Overstock desires to make a rescission offer to affected participants in the
Plan who acquired shares of Overstock Common Stock between July 1, 2008
and June 30, 2009 but has determined that it is unable to do so at the
present time; and


 


WHEREAS,
the Committee serves as the Administrator of the Plan, and is authorized to
take such actions with respect to the Plan as may be deemed necessary or
appropriate by the Committee; and


 


WHEREAS,
the Committee, on behalf of the Plan, and Overstock (the “Parties”) desire to protect any rights of
the Plan or its participants that may exist at June 30, 2009 by ensuring
that any such rights are not prejudiced due to any Time-Related Defenses (as
defined in paragraph 6(b)) that may be asserted as to any Claims (as defined in
paragraph 6(a));


 


NOW
THEREFORE, the Parties agree as follows:


 


1. Period
of Forbearance. Except as otherwise agreed by the Parties, the Plan and the
Committee shall forbear and postpone the filing, commencement, and prosecution
of Claims, if any, against Overstock for the period of time (the “Period of Forbearance”) commencing on the
date hereof and continuing until the earlier of (a) the termination of the
Period of Forbearance pursuant to paragraph 2, or (b) the completion of
any rescission offer process that may be implemented by Overstock relating to
any Overstock Common Stock acquired by the Plan. Nothing in this Agreement shall
require Overstock to make any such rescission offer, and nothing in this
Agreement shall preclude any Party from initiating Claims or other legal action
against the other Party after the termination of the Period of Forbearance
pursuant to paragraph 2.


 


2. Termination.
Any Party shall have the right, effective on the 10th calendar day
after delivery of written notice to the other Party, to terminate the Period of
Forbearance.


 


3. Tolling
Period. During the Period of Forbearance, all Time-Related Defenses will be
tolled for Claims against Overstock. This Agreement does not constitute, and
shall not be interpreted as, an admission by any Party that any Claims are in
existence or, if made, would be valid; that any Claims have or have not yet
accrued; that, but for the Agreement, any Claims would or would not be barred
by any Time-Related Defense; or that the Committee has (or has 


 

















 


assumed)
any obligations to such participants or beneficiaries regarding Claims that
such participants or beneficiaries may have. This Agreement shall have no
effect on any Time-Related Defense already existing prior to June 30, 2009
and, other than that the days covered by the Period of Forbearance shall not
count toward the accrual of any Time-Related Defense, it shall have no effect
on any Time-Related Defense upon the termination of the Period of Forbearance.


 


4. The
current and former participants and beneficiaries of the Plan are express,
intended third party beneficiaries of the tolling of Time-Related Defenses
under this Agreement. Overstock acknowledges the adequacy of the consideration
for the tolling of the Time-Related Defenses as to the Plan and any such
participants and beneficiaries of the Plan, and Overstock agrees not to assert
any defense of lack of or insufficiency of such consideration.


 


5. Notice.
Notice, when required by this Agreement, shall be effective upon receipt.
Notice shall be given in writing and delivered personally or sent by Certified
U.S. Mail Return Receipt Requested, by overnight delivery service, or by both
facsimile and overnight delivery service, addressed as follows:


 


(a)  If to the Plan or the Committee:


 


Overstock.com, Inc.
Employee Benefits Committee


c/o
Stephen J. Chesnut


Overstock.com, Inc.


6350
South 3000 East


Salt
Lake City, Utah  84121


 


(b)  If to Overstock:


 


Overstock.com, Inc.


6350
South 3000 East


Salt
Lake City, Utah  84121


Attention:  General Counsel


 


6. Definitions.
For purposes of this Agreement, the following terms shall have the following
meanings:


 


(a) “Claim” or “Claims” means any action, arbitration, claim, crossclaim,
counterclaim, third-party claim, or other legal right or remedy, including any
right of rescission, based on Section 5 of the Securities Act of 1933,
arising out of or related to the acquisition by the Plan or any participant in
the Plan of unregistered shares of Overstock Common Stock between July 1,
2008 and June 30, 2009, if any, brought by or on behalf of the Plan or by
any current or former Plan participant or beneficiary in connection with
contributions to the Plan or the investment of Plan accounts;


 


(b) “Time-Related Defense” or “Time-Related Defenses” means all
defenses, whether by statute, common law, or equity, based or partially based
on the passage of time or on a conditioning of rights based on the time of
assertion, knowledge, or notice, and includes all 


 


2

















 


statutes
of limitations and statutes of repose as well as all time-related equitable
defenses, such as laches.


 


7. Miscellaneous.


 


(a) Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit
of the undersigned Parties and their respective officers, agents, employees,
attorneys, directors, subsidiaries, affiliates, parent companies, heirs,
executors, administrators, representatives, successors, and assigns.


 


(b) Choice
of Law. This Agreement shall be interpreted and construed under the laws of
the State of Utah, other than its laws with respect to choice of law, and
except as preempted by federal law.


 


(c) Authority.
Each signatory hereto represents and warrants that he or she is authorized to
execute this Agreement.


 


(d) Entire
Agreement. This Agreement represents the entire agreement of the Parties
hereto relating to the subject matter hereof.


 


(e) Modifications.
No modification of this Agreement shall be made except in writing and signed by
the Parties.


 


(f) Counterparts.
This Agreement and any amendment or modification may be executed in separate
counterparts that together constitute one instrument.


 


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Executed on the date first written
above.


 


	
   

  	
   

  	
   

  
	
  OVERSTOCK.COM,
  INC.

  	
   

  	
   

  
	
  By:

  	
  /s/
  Patrick M. Byrne

  	
   

  	
   

  
	
  Name: 

  	
  Patrick
  M. Byrne

  	
   

  	
   

  
	
  Title:

  	
  Chief
  Executive Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  OVERSTOCK.COM.
  INC. 401(K) PLAN 

  	
   

  	
   

  
	
  By:
  Overstock.com, Inc. Employee Benefits Committee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/
  Jonathan E. Johnson III

  	
   

  	
   

  
	
   

  	
  Jonathan
  E. Johnson III

  	
   

  	
   

  
	
   

  	
  Committee
  Member

  	
   

  	
   

  
					



 


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