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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934

May 13, 2004
Date of Report (date of earliest event reported)

Overstock.com, Inc.
(Exact name of Registrant as specified in its charter)

Delaware   000-49799   87-0634302
(State or other jurisdiction of
incorporation or organization)
  (Commission File Number)   (I.R.S. Employer
Identification Number)

6322 South 3000 East, Suite 100
Salt Lake City, Utah 84121
(Address of principal executive offices)

(801) 947-3100
(Registrant's telephone number, including area code)

(Former name or former address, if changed since last report)




Item 5.    Other Events.

        On May 13, 2004, Overstock.com, Inc. (the "Company") entered into an Underwriting Agreement with WR Hambrecht + Co., LLC and JMP Securities LLC in connection with a registered public offering of 1,200,000 shares of its common stock at an offering price of $30.50 per share. The sale of the common stock is to be made under the Company's registration statement on Form S-3 (File No. 333-113104), as amended or supplemented, which became effective on March 8, 2004.

        The Underwriting Agreement is being filed as Exhibit 1.1 to this Current Report on Form 8-K. The opinion of Bracewell & Patterson, L.L.P., is being filed as Exhibit 5.1 to this Current Report on Form 8-K.

        On May 13, 2004, the Company issued a press release announcing the execution of the Underwriting Agreement and a registered public offering of its shares of common stock. The press release is being filed as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein and incorporated by reference into the shelf registration statement.

        Neither the filing of any press release as an exhibit to this Current Report on Form 8-K nor the inclusion in such press release of a reference to the Company's Internet address shall, under any circumstances, be deemed to incorporate the information available at such Internet address into this Current Report on Form 8-K. The information available at the Company's Internet address is not part of this Current Report on Form 8-K or any other report filed by the Company with the Securities and Exchange Commission.

Item 7.    Exhibits.



SIGNATURE

        Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.


 

 

OVERSTOCK.COM, INC.

 

 

By:

 

/s/  
DAVID K. CHIDESTER      
David K. Chidester
Vice President, Finance

 

 

Date: May 13, 2004


EXHIBIT INDEX

Exhibit
Number

  Description

(c

)

Exhibits

1.1

 

Underwriting Agreement dated May 13, 2004, by and among Overstock.com, Inc., WR Hambrecht + Co., LLC and JMP Securities LLC

5.1

 

Opinion of Bracewell & Patterson, L.L.P.

99.1

 

Press Release dated May 13, 2004.



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SIGNATURE
EXHIBIT INDEX

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Exhibit 1.1


1,200,000 Shares(1)

OVERSTOCK.COM, INC.

COMMON STOCK

UNDERWRITING AGREEMENT


(1)
Plus an option to purchase from the Company up to an aggregate of 100,000 additional shares to cover over-allotments.

May 13, 2004

W.R. Hambrecht + Co., LLC
JMP Securities LLC
c/o W.R. Hambrecht + Co., LLC
539 Bryant Street
Suite 100
San Francisco, CA 94107

Ladies and Gentlemen:

        Overstock.com, Inc., a Delaware corporation (the "Company"), proposes to issue and sell up to an aggregate of 1,200,000 shares of its authorized but unissued common stock, $0.0001 par value per share (the "Common Stock"), to the Underwriters (as hereinafter defined) (said 1,200,000 shares of Common Stock to be issued and sold by the Company being herein called the "Underwritten Stock"). The Company has also granted the Underwriters an option to purchase up to an aggregate of 100,000 additional shares of Common Stock (the "Option Stock," and the Option Stock together with the Underwritten Stock being hereinafter referred to as the "Shares"). The Common Stock is more fully described in the Registration Statement and the Final Prospectus hereinafter mentioned.

        The Company hereby confirms the agreements made with respect to the purchase of the Shares by the Underwriters named in Schedule 1 hereto (herein collectively called the "Underwriters," which term shall also include any underwriter purchasing Shares pursuant to Section 3(b) hereof).

        1.    Registration Statement.    The Company has filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), a registration statement on Form S-3 (No. 333-113104), including a prospectus relating to the Shares (the "Base Prospectus"). Copies of such registration statement and of each amendment thereto, if any, including the Base Prospectus (meeting the requirements of Rule 415(a)(1)(x) and Rule 415(a)(4) of the rules and regulations of the Commission) heretofore filed by the Company with the Commission have been delivered to you.

1


        2.    Representations and Warranties of the Company.    The Company hereby represents and warrants to the Underwriters as follows:

2


3


4


5


6


7


        (cc) To the Company's knowledge, the business and operations of the Company have been and are being conducted or operated in compliance with all applicable laws, ordinances, rules, regulations, licenses, permits, approvals, plans, authorizations or requirements relating to occupational safety and health, pollution, protection of health or the environment (including, without limitation, those relating to emissions, discharges, release or threatened releases of pollutants, contaminants or hazardous or toxic substances, materials or wastes into ambient air, surface water, groundwater or land, or relating to the manufacture, processing, distribution, use treatment, storage, disposal, transport or handling of chemical substances, pollutants, contaminants or hazardous or toxic substances, materials or wastes, whether solid, gaseous or liquid in nature) or otherwise relating to remediating real property in which the Company has or has had any interest, whether owned or leased, of any governmental department, commission, board, bureau, agency or instrumentality of the United States, any state or political subdivision thereof and all applicable judicial or administrative agency or regulatory decrees, awards, judgments and orders relating thereto, except for such failures to so comply as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business of the Company, and the Company has not received any notice from a governmental instrumentality or any third party alleging any violation thereof or liability thereunder (including, without limitation, liability for costs of investigating or remediating sites containing hazardous substances or damage to natural resources).

        (dd) Neither the Company nor, to the Company's knowledge, any officer or employee of the Company is a party to any contract or commitment that restricts in any material respect the ability of the Company or such individual to engage in the business of the Company or such subsidiary as described in the Registration Statement and the Final Prospectus.

        3.    Purchase of the Shares by the Underwriters.    

8


        4.    Offering by the Underwriters.    

        5.    Delivery of and Payment for the Shares.    

9


        6.    Covenants of the Company.    The Company covenants and agrees as follows:

10


11


12


        7.    Conditions of the Underwriters' Obligations.    The obligations of the Underwriters under this Agreement are subject to the performance by the Company on and as of the Closing Date or any later date on which Option Stock is to be purchased, as the case may be, of its respective covenants and agreements hereunder, and the following additional conditions:

13


        nothing has come to their attention as a result of the foregoing procedures that caused them to believe that:

14


15


        In case any of the conditions specified in this Section 7 shall not be fulfilled, this Agreement may be terminated by W.R. Hambrecht + Co., LLC by giving notice to the Company. Any such termination shall be without liability of the Company to the Underwriters and without liability of the Underwriters to the Company; provided, however, that (i) in the event of such termination, the Company agrees to indemnify and hold harmless the Underwriters from all costs or expenses incident to the performance of the obligations of the Company under this Agreement, including all costs and expenses referred to in paragraph (g) of Section 6 hereof; and (ii) if this Agreement is terminated by W.R. Hambrecht + Co., LLC because of any refusal or failure on the part of the Company to perform any of its obligations or agreement contained herein, to fulfill any of the conditions herein, or to comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters upon demand for all actual, accountable out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the transactions contemplated hereby.

        8.    Conditions of the Obligations of the Company.    

        9.    Indemnification and Contribution.    

16


17


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        10.    Reimbursement of Certain Expenses.    In addition to its other obligations under Section 9 of this Agreement, the Company hereby agrees to reimburse on a quarterly basis the Underwriters for all

19


reasonable legal and other expenses incurred in connection with investigating or defending any claim, action, investigation, inquiry or other proceeding arising out of or based upon any statement or omission, or any alleged statement or omission, described in paragraph (a) of Section 9 of this Agreement, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the obligations under this Section 10 and the possibility that such payments might later be held to be improper; provided, however, that (i) to the extent that any such payment is ultimately held to be improper, the Underwriters shall promptly refund it; and (ii) the Underwriters shall provide to the Company, upon request, reasonable assurances of their ability to effect any refund, when and if due.

        11.    Representations, etc. to Survive Delivery.    The respective representations, warranties, agreements, covenants, indemnities and statements of, and on behalf of, the Company and its officers and the Underwriters, respectively, set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Underwriters, and will survive delivery of and payment for the Shares. Any successors to the Underwriters shall be entitled to the indemnity, contribution and reimbursement agreements contained in this Agreement.

        12.    Termination.    

        13.    Notices.    All communications hereunder shall be in writing and if sent to the Underwriters shall be mailed or delivered or emailed and confirmed by letter or telecopied and confirmed by letter

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to W.R. Hambrecht + Co., LLC at 539 Bryant Street, San Francisco, California 94107, Attn: Greg Hartmann, Esq. with copies to Morrison & Foerster LLP, 425 Market Street, San Francisco, California 94105, Attn: Bruce Alan Mann, Esq., or, if sent to the Company, shall be mailed or delivered or emailed and confirmed to the Company at 6322 South 3000 East, Suite 100, Salt Lake City, Utah 84121 Attn: President, with copies to Bracewell & Patterson, L.L.P., 111 Congress, Suite 2300, Austin, Texas 78701, Attn: Tom Adkins, Esq.

        14.    Successors.    This Agreement shall be to the benefit of and be binding upon the Company and the Underwriters and, with respect to the provisions of Section 9 hereof, the several parties (in addition to the Company and the Underwriters) indemnified under the provisions of said Section 9, and their respective personal representatives, successors and assigns. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions herein contained. The term "successors and assigns" as herein used shall not include any purchaser, as such purchaser, of any of the Shares from the Underwriters.

        15.    Counterparts.    This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument.

        16.    Governing Law.    This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in the City and County of San Francisco or the courts of the State of California in each case located in the City and County of San Francisco (collectively, the "Specified Courts"), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party's address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.

[INTENTIONALLY LEFT BLANK]

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        If the foregoing correctly sets forth our understanding, please indicate the Underwriters' acceptance thereof in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us.


 

 

 

Very truly yours,

 

 

 

OVERSTOCK.COM, INC.

 

 

 

By:

/s/  
DAVID K. CHIDESTER      
      Name: David K. Chidester
      Title: Vice President, Finance

Accepted as of the date first above written:

 

 

 

W.R. HAMBRECHT + CO., LLC
JMP SECURITIES LLC

 

 

 

By:

W.R. Hambrecht + Co., LLC

 

 

 

By:

/s/  
JONATHAN T. FAYMAN      

 

 

 
Name: Jonathan T. Fayman      
Title: Chief Financial Officer      

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SCHEDULE 1

UNDERWRITERS

Underwriter

  Number of Shares
to be Purchased
From the Company


W.R. Hambrecht + Co., LLC

 

686,400

JMP Securities LLC

 

342,000

Legg Mason Wood Walker, Incorporated

 

171,600

Total

 

1,200,000

23



Exhibit A

Form of Opinion of Bracewell & Patterson, L.L.P.
on Behalf of the Company

        (a)   The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority to own or lease its properties and conduct its business as described in the Final Prospectus, and is duly qualified as a foreign corporation to transact business and is in good standing in the State of Utah.

        (b)   The authorized capital stock of the Company consists of 5,000,000 shares of Preferred Stock, $0.0001 par value, of which there are no outstanding shares, and 100,000,000 shares of Common Stock, $0.0001 par value, of which there are outstanding            shares (including the Underwritten Stock and any shares of Option Stock issued on the date hereof). The Underwritten Stock and any shares of Option Stock issued on the date hereof, when issued and delivered to and paid for by the Underwriters as provided in the Underwriting Agreement, will be duly and validly issued and will be fully paid and nonassesable. The stockholders of the Company have no preemptive rights or rights of first refusal with respect to the issuance and the sale of the Shares pursuant to the Company's certificate of incorporation or bylaws, and to the knowledge of such counsel after due inquiry, there are no written contractual preemptive rights, right of first refusal or rights of co-sale that exist with respect to the Shares to be sold by the Company that have not been waived or otherwise satisfied.

        (c)   To the knowledge of such counsel after due inquiry, the Company has no subsidiaries except as disclosed in the Final Prospectus.

        (d)   To the knowledge of such counsel after due inquiry, and except as disclosed in the Final Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement.

        (e)   The Company has corporate power and authority to authorize, issue and sell the Shares to be sold by the Company as contemplated by the Underwriting Agreement. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.

        (f)    Neither the execution, delivery or performance by the Company of its obligations under the Underwriting Agreement, nor the issuance and sale of the Shares to be sold by the Company thereunder, results in a breach or violation of any of the terms or provisions of, or constitutes a default under, (i) any statute, rule or regulation known to such counsel after due inquiry to be customarily applicable to transactions of this nature, (ii) any order of any governmental agency or body or any court having jurisdiction over the Company known by such counsel after due inquiry or (iii) any certificate, agreement, plan or other document filed as an exhibit to the Registration Statement.

        (g)   No consent, approval, authorization or order of any court, domestic regulatory body or administrative agency or other governmental agency or body is required for the consummation of the transactions contemplated in the Underwriting Agreement, except such as have been obtained under the Securities Act, the Exchange Act or as may be required under state securities or Blue Sky laws or as may be required by the bylaws or rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriters.

        (h)   The Registration Statement has been declared effective under the Securities Act; the filing of the Final Prospectus with the Commission pursuant to Rule 424(b) under the Act was made in the manner and within the time period required by Rule 424(b); and to the knowledge of such counsel

1



after due inquiry, no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued, and no proceedings for that purpose have been instituted or are pending or are threatened or contemplated by the Commission.

        (i)    To the knowledge of such counsel after due inquiry, there are no contracts, leases, agreements or other documents to which the Company is a party of a character required to be filed as an exhibit to the Registration Statement which are not filed as required.

        (j)    The Company is not an "investment company" within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder.

        (k)   To the knowledge of such counsel after due inquiry, there are no legal or governmental proceedings to which the Company is a party that are required to be described in the Registration Statement that are not described as required.

        In addition, counsel shall state that, because the primary purpose of their engagement was not to establish or confirm factual matters or financial or accounting matters and because of the wholly or partially non-legal character of many of the statements contained in the Registration Statement, the Prospectus and the Prospectus Supplement, such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Prospectus or the Prospectus Supplement, and such counsel has not independently verified the accuracy, completeness or fairness of such statements. Such counsel may state that without limiting the foregoing, such counsel assumes no responsibility for, has not independently verified and has not been asked to comment on the accuracy, completeness or fairness of the financial statements and schedules included in the Registration Statement, the Prospectus or the Prospectus Supplement or the exhibits to the Registration Statement, and has not examined the accounting, financial or other records from which such financial statements, schedules and other financial data and information were derived. Counsel may note that, although certain portions of the Registration Statement (including financial statements and schedules) have been included therein on the authority of "experts" within the meaning of the Securities Act, they are not experts with respect to any portion of the Registration Statement, including, without limitation, such financial statements and schedules and related data included therein. Counsel shall state, however, that they have participated in conferences with officers and other representatives of the Company, the Company's auditors, representatives of the underwriters and their counsel at which the contents of the Registration Statement, the Prospectus and the Prospectus Supplement and related matters were discussed, and that, based upon such participation and review, and relying as to materiality in part upon the factual statements of officers and other representatives of the Company and upon representatives of the underwriters, counsel shall advise that no facts have come to their attention that have caused them to believe that (i) the Registration Statement (except for financial statements, schedules and related data and other financial or accounting data, as to which they have not been asked to comment) does not appear on its face to comply as to form in all material respects with the requirements of Form S-3, or (ii) the Registration Statement (except for the financial statements, schedules and related data and other financial or accounting data, as to which they have not been asked to comment), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) the Prospectus, as supplemented by the Prospectus Supplement (except for the financial statements, schedules and related data, as to which they have not been asked to comment), as of the date of the Prospectus Supplement, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

2





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1,200,000 Shares(1) OVERSTOCK.COM, INC. COMMON STOCK UNDERWRITING AGREEMENT
SCHEDULE 1 UNDERWRITERS
Exhibit A

Exhibit 5.1

May 13, 2004

Overstock.com, Inc.
6322 South 3000 East, Suite 100
Salt Lake City, Utah 84121

Ladies and Gentlemen:

        We have acted as counsel to Overstock.com, Inc., a Delaware corporation (the "Company"), in connection with the registration of the offer and sale by the Company of 1,200,000 shares of the Company's common stock (the "Stock") pursuant to the registration statement on Form S-3 (File No. 333-113104) filed by the Company with the Securities and Exchange Commission on February 26, 2004 (the "Registration Statement").

        The offering and sale of the Stock is proposed to be made pursuant to an Underwriting Agreement dated May 13, 2004 by and among the Company, WR Hambrecht + Co., LLC and JMP Securities LLC (the "Underwriting Agreement").

        We have examined originals or copies identified to our satisfaction of (a) the Underwriting Agreement, (b) the Amended and Restated Certificate of Incorporation and By-laws of the Company, each as amended to date, (c) certain resolutions adopted by the Board of Directors of the Company and by a committee thereof, and (d) such other documents and records as we have deemed necessary and relevant for the purposes hereof. In addition, we have relied on certificates of officers of the Company and of public officials and others as to certain matters of fact relating to this opinion and have made such investigations of law as we have deemed necessary and relevant as a basis hereof. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents and records submitted to us as originals, the conformity to authentic original documents and records of all documents and records submitted to us as copies, and the truthfulness of all statements of fact contained therein.

        Based on the foregoing, subject to the limitations, assumptions and qualifications set forth herein, and having due regard for such legal considerations as we deem relevant, we are of the opinion that:

        The foregoing opinion is based on and limited to the General Corporation Law of the State of Delaware, including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting such laws, and the relevant law of the United States of America, and we render no opinion with respect to the law of any other jurisdiction.

        We hereby consent to the filing of this opinion with the Commission as an exhibit to a Current Report on Form 8-K which is incorporated by reference into the Registration Statement and to the references to our firm under the heading "Legal Matters" in the Prospectus Supplement and in the Registration Statement. By giving such consent, we do not admit that we are experts with respect to



any part of the Registration Statement, including this Exhibit, within the meaning of the term "expert" as used in the Securities Act or the rules and regulations thereunder.


 

 

Very truly yours,

 

 

/s/  
BRACEWELL & PATTERSON, L.L.P.      

 

 

Bracewell & Patterson, L.L.P.



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Exhibit 99.1

FOR IMMEDIATE RELEASE   Investor Contact:
Kathryn Huang Hadley
Overstock.com, Inc.
+1 (801) 947-3282
khuang@overstock.com
  Media Contact:
Scott Blevins
Overstock.com, Inc.
+1 (801) 947-3133
sblevins@overstock.com


Overstock.com, Inc. To Raise
Approximately $36.6 Million In
Auction-Based
Common Stock Offering

        SALT LAKE CITY—Overstock.com, Inc. (NASDAQ: OSTK) today announced that it expects to raise approximately $36.6 million from its auction-based underwritten public offering of 1,200,000 shares of common stock at a price of $30.50 per share. Subject to customary closing conditions, Overstock will receive net proceeds of approximately $35.3 million from the offering under its existing shelf registration statement. The underwriters have an option to purchase up to an additional 100,000 shares to cover over-allotments, if any.

        WR Hambrecht + Co LLC acted as the sole book-running manager. JMP Securities LLC acted as co-lead manager. The offering was made through WR Hambrecht + Co's OpenFollowOnsm auction process.

        Overstock anticipates using the net proceeds of the offering primarily for general corporate purposes and working capital requirements, including sales and marketing activities and inventory purchases.

        This press release does not constitute an offer to sell or the solicitation of an offer to buy any of the securities. A final prospectus supplement relating to these securities will be filed with the Securities and Exchange Commission. These securities may not be sold nor offers to buy be accepted prior to the time the prospectus supplement and related prospectuses are delivered in final form.

        Copies of the final prospectus supplement and the accompanying prospectus can be obtained from WR Hambrecht + Co LLC, 539 Bryant St., San Francisco, California, 94107, (415) 551-8600 or from JMP Securities LLC, One Embarcadero Center, Suite 2100, San Francisco, California 94111, (415) 835-8900.

About Overstock.com

        Overstock.com Inc. is an online "closeout" retailer offering discount, brand-name merchandise for sale over the Internet. The company offers its customers an opportunity to shop for bargains conveniently, while offering its suppliers an alternative inventory liquidation distribution channel. Overstock.com is a publicly traded company listed on the NASDAQ National Market System, headquartered in Salt Lake City, and can be found online at www.overstock.com.

# # #

        Overstock.com is a registered trademark of Overstock.com, Inc. All other trademarks are the property of their respective owners.

        This press release contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Such forward-looking statements include, but are not limited to, statements regarding our anticipated receipt of the proceeds of the offering as described herein and our intentions regarding the uses of the net proceeds of the offering. These forward-looking statements involve certain risks and uncertainties that could cause actual results to differ from those anticipated, including, but not limited to, the risks inherent in the process of offering common stock under a shelf registration statement, our limited operating



history, the possibility of a general downturn in economic conditions, the possibility of a general downturn in the public equity markets or in the market for NASDAQ stocks or for internet retailers, as well as the other risks identified in our Form 10- K for the year ended December 31, 2003, our Form 10-Q for the quarter ended March 31, 2004, our preliminary prospectus supplement filed with the SEC on May 7, 2004 pursuant to Rule 424(b)(5) and all of our subsequent filings with the Securities and Exchange Commission, which identify important factors that could cause the actual results to differ materially from those contained in our forward-looking statements.




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Overstock.com, Inc. To Raise Approximately $36.6 Million In Auction-Based Common Stock Offering