Exhibit 3.1A

 

ARTICLES OF AMENDMENT TO THE

AMENDED AND RESTATED ARTICLES OF INCORPORATION OF

 

OVERSTOCK.COM, INC.

Overstock.com, Inc., a Utah corporation (the “Company”), acting pursuant to Sections 16-10a-602 and 16-10a-1002 of the Utah Revised Business Corporation Act (the “Act”), hereby submits for filing these Articles of Amendment to its Amended and Restated Articles of Incorporation and hereby certifies as follows:

1.             The name of the Company is Overstock.com, Inc.

2.             The following text is added to the end of Article III of the Company’s Amended and Restated Articles of Incorporation as previously in effect (the “Amendment”):

“Preferred Stock.

 

1.1          Designation of Series A Preferred Stock.

 

(a)           Series A Preferred Stock.  Thirty million eight hundred thirty-eight thousand eight hundred sixteen (30,838,816) shares of the 50,000,000 shares of preferred stock authorized in the Company’s Amended and Restated Articles of Incorporation are hereby designated as “Series A Preferred Stock.”  To the extent that shares of Series A Preferred Stock are, following their initial issuance, converted as hereinafter provided or repurchased by the Company, the number of shares in such series shall be automatically reduced, without further action by the shareholders or the Board of Directors of the Company.

(b)           Definitions.  For purposes of this Article III, the following definitions shall apply:

(i)            “Conversion Price” shall initially mean $0.2432 per share for the Series A Preferred Stock (subject to adjustment as set forth elsewhere herein).

(ii)           “Convertible Securities” shall mean any evidences of indebtedness, shares or other securities (other than shares of Series A Preferred Stock) convertible into or exchangeable for Common Stock.

(iii)          “Distribution” shall mean the transfer of cash or other property without consideration whether by way of dividend or otherwise, payable other than in Common Stock, or the purchase or redemption of shares of the Company for cash or property other than:  (i) repurchases of Common Stock issued to or held by employees, officers, directors or consultants of the Company or its subsidiaries upon termination of their employment or services pursuant to agreements providing for the right of said repurchase, (ii) repurchases of Common Stock issued to or held by employees, officers, directors or consultants of the Company or its subsidiaries pursuant to rights of first refusal contained in agreements providing for such right, (iii) repurchase of capital stock of the Company in connection with

 

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the settlement of disputes with any stockholder, or (iv) any other repurchase or redemption of capital stock of the Company approved by the holders of a majority of the Common Stock of the Company and the holders of at least 65% of the Series A Preferred Stock of the Company voting as separate classes.

(iv)          “Dividend Rate” for the Series A Preferred Stock, the Dividend Rate shall be an annual, fixed dividend of $0.019456 per share (subject to adjustment from time to time for Recapitalizations of Series A Preferred as set forth elsewhere herein).

(v)           “Liquidation Preference” shall mean $0.2432 per share for the Series A Preferred Stock (subject to adjustment from time to time for Recapitalizations of Series A Preferred Stock as set forth elsewhere herein).

(vi)          “Merger or Consolidation” shall mean the acquisition of the Company by another entity by means of any transaction or series of related transactions (including, without limitation, any stock acquisition, reorganization, merger or consolidation but excluding any sale of stock for capital raising purposes) other than a transaction or series of transactions in which the holders of the voting securities of the Company outstanding immediately prior to such transaction continue to retain (either by such voting securities remaining outstanding or by such voting securities being converted into voting securities of the surviving or resulting entity), as a result of shares in the Company held by such holders prior to such transaction, at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving or resulting entity outstanding immediately after such transaction or series of transactions.

(vii)         “Options” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.

(viii)        “Original Issue Date” shall mean the date of the first issuance of any shares of Series A Preferred Stock.

(ix)           “Original Issue Price” shall mean $0.2432 per share for the Series A Preferred Stock (subject to adjustment from time to time for any Recapitalization of Series A Preferred Stock as set forth elsewhere herein).

(x)            “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 appropriately adjusted for Recapitalizations) 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.

(xi)           “Recapitalization” shall mean any stock dividend, stock split, combination of shares, reorganization, recapitalization, reclassification or other similar event.

(xii)          “Securities Act” shall mean the Securities Act of 1933, as amended.

 

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1.2          Dividends.

(a)           Series A Preferred Stock.  The holders of outstanding shares of Series A Preferred Stock shall be entitled, when and if declared by the Board of Directors, to receive dividends out of any assets at the time legally available therefor, at the Dividend Rate payable in preference and priority to any declaration or payment of any Distribution on any other class or series of capital stock of the Company.  Payment of declared and accrued (pursuant to Section 1.2(c)) but unpaid dividends shall be in cash or, at the mutual agreement of the holder of such shares and the Company, in Common Stock, with the number of shares of Common Stock per holder into which such dividends may be converted being determined by dividing the aggregate amount of the declared but unpaid and accrued but unpaid dividends due such holder by the then fair market value of one share of Common Stock.  Such dividend preference shall not be cumulative except as expressly provided in Section 1.2(c).

(b)           Dividends on Common Stock.  After the payment or setting aside for payment of the dividends as described in Section 1.2(a) and 1.2(c), any additional dividends (other than dividends payable solely in Common Stock) declared or paid in any fiscal year shall be declared or paid among the holders of the Series A Preferred Stock and Common Stock then outstanding in proportion to the greatest whole number of shares of Common Stock which would be held by each such holder if all shares of Series A Preferred Stock were converted at the then-effective Conversion Rate (as defined in Section 1.4 hereof).

(c)           Cumulative Dividends.  In the event that the Company has not by March 31, 2003, completed its initial public offering of its Common Stock pursuant to an effective registration statement filed under the Securities Act, the dividends described in Section 1.2(a) shall become cumulative.  Such dividends shall be cumulative from April 1, 2003 and payable (i) when and as declared by the Board of Directors, (ii) upon a Liquidation Event (as defined in Section 1.3(d) below),  (iii) upon a Qualified Public Offering or (iv) pursuant to Section 1.5 below.

(d)           Non-Cash Distributions.

(i)        Distributions other than Common Stock.  Except as provided in subsection (ii) below, whenever a Distribution provided for in this Section 1.2 shall be payable in property other than cash, the value of such Distribution shall be deemed to be the fair market value of such property as determined in good faith by the Board of Directors.

(ii)       Common Stock.  For purposes of this Section 1.2, the fair market value of one share of common stock shall be: (x) the initial “price to public” specified in the final prospectus with respect to a Qualified Offering; (y) the value received by the holders of Common Stock pursuant to a Merger or Consolidation for each share of such securities; or (z) as determined pursuant to Section 1.2(d)(i) above if there is no Qualified Offering or Merger or Consolidation.

1.3          Liquidation Rights.

(a)           Liquidation Preference.  In the event of any liquidation, dissolution or winding up of the Company, either voluntary or involuntary, the holders of the Series A Preferred Stock shall be entitled to receive, prior and in preference to any Distribution of any of the assets of the Company to the holders of the Common Stock by reason of their ownership of such stock, an amount per share for each share of Series A Preferred Stock held by them equal to the sum of (i) the Liquidation Preference and (ii) all declared but unpaid and accrued but unpaid dividends on such share of Series A Preferred Stock.  If, upon the liquidation, dissolution or winding up of the Company, the assets of the Company legally

 

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available for distribution to the holders of the Series A Preferred Stock are insufficient to permit the payment to such holders of the full amounts specified in this Section 1.3(a), then the entire assets of the Company legally available for distribution shall be distributed with equal priority and pro rata among the holders of the Series A Preferred Stock in proportion to the full amounts they would otherwise be entitled to receive pursuant to this Section 1.3(a).

(b)           Common Stock Liquidation Preference.  After the payment to the holders of Series A Preferred Stock of the full preferential amounts specified above, the remaining assets of the Company,  in an amount not to exceed the amount of the common stock paid in capital as reflected on the Company’s December 31, 2001 audited balance sheet, legally available for distribution by the Company, shall be distributed with equal priority and pro rata among the holders of the Common Stock in proportion to the number of shares of Common Stock held by them, without the shares of Series A Preferred Stock being treated for this purpose as if they had been converted to shares of Common Stock.  If, upon the liquidation, dissolution or winding up of the Company, the assets of the Company legally available for distribution to the holders of Common Stock are insufficient to permit the payment to such holders of the full amounts specified in this Section 1.3(b), then the entire assets of the Company legally available for distribution after payment to the holders of Series A Preferred of the full preferential amounts specified above shall be distributed with equal priority and pro rata among the holders of Common Stock in proportion to the full amounts they would otherwise be entitled to receive pursuant to this Section 1.3(b).

(c)           Remaining Assets.  After the payment to the holders of Series A Preferred Stock and Common Stock of the full preferential amounts specified above in Sections 1.3(a) and 1.3(b), the entire remaining assets of the Company legally available for distribution by the Company shall be distributed with equal priority and pro rata among the holders of the Series A Preferred Stock and Common Stock in proportion to the number of shares of Common Stock held by them, with the shares of Series A Preferred Stock being treated for this purpose as if they had been converted to shares of Common Stock at the then applicable Conversion Rate.

(d)           Liquidation Events.  For purposes of this Section 1.3, a liquidation, dissolution or winding up of the Company (a “Liquidation Event”) shall be deemed to be occasioned by, or to include, (i) a Merger or Consolidation; (ii) a sale, lease or other conveyance of all or substantially all of the assets of the Company; or (iii) any liquidation, dissolution or winding up of the Company, whether voluntary or involuntary.

(e)           Valuation of Non-Cash Consideration.  If any assets of the Company distributed to shareholders in connection with any liquidation, dissolution, or winding up of the Company are other than cash, then the value of such assets shall be their fair market value as determined in good faith by the Board of Directors, except that any publicly-traded securities to be distributed to shareholders in a liquidation, dissolution, or winding up of the Company shall be valued as follows:

(i)            If the securities are then traded on a national securities exchange or the Nasdaq Stock Market (or a similar national quotation system), then the value of the securities shall be deemed to be to the average of the closing prices of the securities on such exchange or system over the 10 trading day period ending 5 trading days prior to the Distribution;

 

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(ii)           if the securities are actively traded over-the-counter, then the value of the securities shall be deemed to be the average of the closing bid prices of the securities over the 10 trading day period ending 5 trading days prior to the Distribution.

In the event of a merger or other acquisition of the Company by another entity, the Distribution date shall be deemed to be the date such transaction closes.

1.4          Conversion.  The holders of the Series A Preferred Stock shall have conversion rights as follows (the “Conversion Rights”):

(a)           Right to Convert.  Subject to the provisions of Section 1.4(b), each share of Series A Preferred Stock shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Company or any transfer agent for the Series A Preferred Stock, into that number of fully-paid, nonassessable shares of Common Stock determined by dividing the Original Issue Price of the Series A Preferred Stock by the then effective Conversion Price of the Series A Preferred Stock.  (The number of shares of Common Stock into which each share of Series A Preferred Stock may be converted is hereinafter referred to as the “Conversion Rate” for the Series A Preferred Stock.)  Upon any decrease or increase in the Conversion Price for the Series A Preferred Stock, as described in this Section 1.4, the Conversion Rate for the Series A Preferred Stock shall be appropriately increased or decreased.

(b)           Automatic Conversion.  Each share of Series A Preferred Stock shall automatically be converted into that number of fully-paid, nonassessable shares of Common Stock determined by dividing (i) the sum of the Original Issue Price plus all declared but unpaid and accrued but unpaid dividends, if applicable, by (ii) the then effective Conversion Price for such share, upon the earlier to occur of: (1) immediately prior to the closing of the Qualified Public Offering or (2) the written consent of the holders of at least 65% of the then outstanding shares of Series A Preferred Stock (each of the events referred to in (1) and (2) are referred to herein as an “Automatic Conversion Event”).

(c)           Mechanics of Conversion.  No fractional shares of Common Stock shall be issued upon conversion of Series A Preferred Stock.  In lieu of any fractional shares to which the holder would otherwise be entitled, the Company shall pay cash equal to such fraction multiplied by the then fair market value of a share of Common Stock as determined by the Board of Directors.  For such purpose, all shares of Series A Preferred Stock held by each holder of Series A Preferred Stock shall be aggregated, and any resulting fractional share of Common Stock shall be paid in cash.  Before any holder of Series A Preferred Stock shall be entitled to convert the same into full shares of Common Stock, and to receive certificates therefor, such holder shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Company or of any transfer agent for the Series A Preferred Stock, and shall give written notice to the Company at such office that such holder elects to convert the same; provided, however, that on the date of an Automatic Conversion Event, the outstanding shares of Series A Preferred Stock shall be converted automatically, without any further action by the holders of such shares and whether or not the certificates representing such shares are surrendered to the Company or its transfer agent; provided further, however, that the Company shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such Automatic Conversion Event unless either the certificates evidencing such shares of Series A Preferred Stock are delivered to the Company or its transfer agent as provided above, or the holder notifies the Company or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Company to indemnify the Company from any loss incurred by it in connection with such certificates. 

 

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On the date of the occurrence of an Automatic Conversion Event, each holder of record of shares of Series A Preferred Stock shall be deemed to be the holder of record of the Common Stock issuable upon such conversion, notwithstanding that the certificates representing such shares of Series A Preferred Stock shall not have been surrendered at the office of the Company, that notice from the Company shall not have been received by any holder of record of shares of Series A Preferred Stock, or that the certificates evidencing such shares of Common Stock shall not then be actually delivered to such holder.

(d)           Adjustments to Conversion Price for Diluting Issues.

(i)       Special Definition.  For purposes of this Section 1.4(d), “Additional Shares of Common” shall mean all shares of Common Stock issued (or, pursuant to Section 1.4(d)(iii), deemed to be issued) by the Company after the Original Issue Date other than:

(1)           shares of Common Stock issued or issuable upon conversion of shares of Series A Preferred Stock;

(2)           up to 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);

(3)           shares of Common Stock issued upon the exercise, exchange, adjustment or conversion of Options or Convertible Securities outstanding as of the date of the filing of these Articles of Amendment to the Company’s Amended and Restated Articles of Incorporation (other than options outstanding pursuant to stock plans covered under Section 1.4(d)(i)(2) above);

(4)           shares of Common Stock issued or issuable pursuant to a stock split, as a dividend or distribution on Series A Preferred Stock or pursuant to any event for which adjustment is made pursuant to Section 1.4(e), (f) or (g) hereof;

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

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

(7)           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;

(8)           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 is approved by a majority of the Board of Directors;

(9)           shares of Common Stock which the holders of at least 65% of the then outstanding Series A Preferred Stock agree in writing shall not constitute Additional Shares of Common, each such agreement to be deemed effective immediately prior to the related issuance.

 

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(ii)      No Adjustment of Conversion Price.  No adjustment in the Conversion Price of the Series A Preferred Stock shall be made in respect of the issuance of Additional Shares of Common unless the consideration per share (as determined pursuant to Section 1.4(d)(v)) for an Additional Share of Common issued or deemed to be issued by the Company is less than the Conversion Price in effect on the date of, and immediately prior to such issue, for the Series A Preferred Stock.

(iii)     Deemed Issue of Additional Shares of Common.  In the event the Company at any time or from time to time after the Original Issue Date shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares (as set forth in the instrument relating thereto without regard to any provisions contained therein for a subsequent adjustment of such number) of Common Stock issuable upon the exercise of such Options or, in the case of Convertible Securities, the conversion or exchange of such Convertible Securities or, in the case of Options for Convertible Securities, the exercise of such Options and the conversion or exchange of the underlying Convertible Securities, shall be deemed to have been issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date, provided that in any such case in which shares are deemed to be issued:

(1)           no further adjustment in the Conversion Price of the Series A Preferred Stock shall be made upon the subsequent issue of Convertible Securities or shares of Common Stock in connection with the exercise of such Options or conversion or exchange of such Convertible Securities;

(2)           if such Options or Convertible Securities by their terms provide, with the passage of time or otherwise, for any increase in the consideration payable to the Company, or decrease in the number of shares of Common Stock issuable, upon the exercise, conversion or exchange thereof, the Conversion Price of the Series A Preferred Stock computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto), and any subsequent adjustments based thereon, shall, upon any such increase or decrease becoming effective, be recomputed to reflect such increase or decrease insofar as it affects such Options or the rights of conversion or exchange under such Convertible Securities;

(3)           no readjustment pursuant to clause (2) above shall have the effect of increasing the Conversion Price of the Series A Preferred Stock to an amount which exceeds the lower of (i) the Conversion Price of the Series A Preferred Stock on the original adjustment date, or (ii) the Conversion Price of the Series A Preferred Stock that would have resulted from any issuance of Additional Shares of Common between the original adjustment date and such readjustment date;

(4)           upon the expiration of any such Options or any rights of conversion or exchange under such Convertible Securities which shall not have been exercised, the Conversion Price computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto) and any subsequent adjustments based thereon shall, upon such expiration, be recomputed as if:

a)             in the case of Convertible Securities or Options for Common Stock, the only Additional Shares of Common issued were the shares of Common Stock, if any, actually issued upon the exercise of such Options or the conversion or exchange of such Convertible Securities and the consideration received therefor was the consideration actually received by the

 

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Company for the issue of such exercised Options plus the consideration actually received by the Company upon such exercise or for the issue of all such Convertible Securities which were actually converted or exchanged, plus the additional consideration, if any, actually received by the Company upon such conversion or exchange, and

b)            in the case of Options for Convertible Securities, only the Convertible Securities, if any, actually issued upon the exercise thereof were issued at the time of issue of such Options, and the consideration received by the Company for the Additional Shares of Common deemed to have been then issued was the consideration actually received by the Company for the issue of such exercised Options, plus the consideration deemed to have been received by the Company (determined pursuant to Section 1.4(d)(v)) upon the issue of the Convertible Securities with respect to which such Options were actually exercised; and

(5)           if such record date shall have been fixed and such Options or Convertible Securities are not issued on the date fixed therefor, the adjustment previously made in the Conversion Price which became effective on such record date shall be canceled as of the close of business on such record date, and thereafter the Conversion Price shall be adjusted pursuant to this Section 1.4(d)(iii) as of the actual date of their issuance.

(iv)     Adjustment of Conversion Price Upon Issuance of Additional Shares of Common.  In the event this Company shall issue Additional Shares of Common (including Additional Shares of Common deemed to be issued pursuant to Section 1.4(d)(iii)) without consideration or for a consideration per share less than the applicable Conversion Price of the Series A Preferred Stock in effect on the date of and immediately prior to such issue, then, the Conversion Price of the affected series of Series A Preferred Stock shall be reduced, concurrently with such issue, to a price equal to the consideration per share of such Additional Shares of Common; provided, however, that if, immediately prior to any adjustment to the Conversion Price, the then current Conversion Price is less than $0.1702 (as adjusted for any Recapitalizations after the Original Issue Date), then, the Conversion Price of the Series A Preferred Stock shall be reduced, concurrently with such issue, to a price (calculated to the nearest cent) determined by multiplying such Conversion Price by a fraction, the numerator of which shall be the number of shares of Common Stock and Preferred Stock outstanding immediately prior to such issue plus the number of shares which the aggregate consideration received by the Company for the total number of Additional Shares of Common so issued would purchase at such Conversion Price, and the denominator of which shall be the number of shares of Common Stock and Preferred Stock outstanding immediately prior to such issue plus the number of such Additional Shares of Common so issued.  For the purposes of this Section 1.4(d)(iv), shares of Common Stock issuable upon (i) conversion of outstanding shares of Preferred Stock and (ii) exercise of Options or conversion or exchange of Convertible Securities shall not be deemed to be outstanding.

(v)      Determination of Consideration.  For purposes of this Section 1.4(d), the consideration received by the Company for the issue (or deemed issue) of any Additional Shares of Common shall be computed as follows:

(1)           Cash and Property.  Such consideration shall:

a)             insofar as it consists of cash, be computed at the aggregate amount of cash received by the Company excluding amounts paid or payable for accrued interest or dividends;

 

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b)            insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined in good faith by the Board of Directors; and

c)             in the event Additional Shares of Common are issued together with other shares or securities or other assets of the Company for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (a) and (b) above, as reasonably determined in good faith by the Board of Directors.

(2)           Options and Convertible Securities.  The consideration per share received by the Company for Additional Shares of Common deemed to have been issued pursuant to Section 1.4(d)(iii) shall be determined by dividing

a)             the total amount, if any, received or receivable by the Company as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Company upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities by

b)            the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities.

(e)           Adjustments for Subdivisions or Combinations of Common Stock.  In the event the outstanding shares of Common Stock shall be subdivided (by stock split, by payment of a stock dividend or otherwise), into a greater number of shares of Common Stock, the Conversion Price of the Series A Preferred Stock in effect immediately prior to such subdivision shall, concurrently with the effectiveness of such subdivision, be proportionately decreased.  In the event the outstanding shares of Common Stock shall be combined (by reclassification or otherwise) into a lesser number of shares of Common Stock, the Conversion Price of the Series A Preferred Stock in effect immediately prior to such combination shall, concurrently with the effectiveness of such combination, be proportionately increased.

(f)            Adjustments for Subdivisions or Combinations of Series A Preferred Stock.  In the event the outstanding shares of Series A Preferred Stock shall be subdivided (by stock split, by payment of a stock dividend or otherwise), into a greater number of shares of Series A Preferred Stock, the Dividend Rate, Original Issue Price and Liquidation Preference of the Series A Preferred Stock in effect immediately prior to such subdivision shall, concurrently with the effectiveness of such subdivision, be proportionately decreased.  In the event the outstanding shares of Series A Preferred Stock shall be combined (by reclassification or otherwise) into a lesser number of shares of Series A Preferred Stock, the Dividend Rate, Original Issue Price and Liquidation Preference of the affected series of Series A Preferred Stock in effect immediately prior to such combination shall, concurrently with the effectiveness of such combination, be proportionately increased.

 

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(g)           Adjustments for Reclassification, Exchange and Substitution.  Subject to Section 1.3 above (the “Liquidation Rights”), if the Common Stock issuable upon conversion of the Series A Preferred Stock shall be changed into the same or a different number of shares of any other class or classes of stock, whether by capital reorganization, reclassification or otherwise (other than a subdivision or combination of shares provided for above), then, in any such event, in lieu of the number of shares of Common Stock which the holders would otherwise have been entitled to receive, each holder of such Series A Preferred Stock shall have the right thereafter to convert such shares of Series A Preferred Stock into a number of shares of such other class or classes of stock which a holder of the number of shares of Common Stock deliverable upon conversion of such Series A Preferred Stock immediately before that change would have been entitled to receive in such reorganization or reclassification, all subject to further adjustment as provided herein with respect to such other shares.

(h)           No Impairment.  The Company will not through any amendment of its Amended and Restated Articles of Incorporation, as amended hereby (its “Articles of Incorporation”), or through any reorganization, transfer of assets, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company but will at all times in good faith assist in the carrying out of all the provisions of this Section 1.4 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the holders of Series A Preferred Stock against impairment.  Notwithstanding the foregoing, nothing in this Section 1.4(h) shall prohibit the Company from amending its Articles of Incorporation with the requisite consent of its shareholders and the board of directors.

(i)            Adjustment in the Event of No Qualified Public Offering.  Notwithstanding anything herein to the contrary, if the Company has not closed a Qualified Public Offering by March 31, 2003, the then-applicable Conversion Price for each share of Series A Preferred will automatically adjust down to the lower of (i) $0.1702 (as adjusted for any Recapitalizations after the Original Issue Date) or (ii) the fair market value per share of the Company’s Common Stock.  For purposes of this Section 1.4(j), the fair market value of one share of Common Stock shall be: (i) the price per share of the Common Stock sold in the transaction in which the Company sells shares of Common Stock that is consummated during 2002 or 2003 that is nearest in time to the time of adjustment pursuant to this Section 1.4(j), or (ii) if no such transaction has occurred, as determined in good faith by the Board of Directors.

(j)            The Conversion Price is subject to adjustment pursuant to the provisions of Section 1.5 below.

(k)           Certificate as to Adjustments.  Upon the occurrence of each adjustment or readjustment of the Conversion Price pursuant to this Section 1.4, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of Series A Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based.  The Company shall, upon the written request at any time of any holder of Series A Preferred Stock, furnish or cause to be furnished to such holder a like certificate setting forth (i) such adjustments and readjustments, (ii) the Conversion Price at the time in effect and (iii) the number of shares of Common Stock and the amount, if any, of other property which at the time would be received upon the conversion of Series A Preferred Stock.

 

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(l)            Waiver of Adjustment of Conversion Price.  Notwithstanding anything herein to the contrary, any downward adjustment of the Conversion Price of the Series A Preferred Stock may be waived, either prospectively or retroactively and either generally or in a particular instance, by the consent or vote of the holders of at least 65% of the outstanding shares of Series A Preferred Stock. Any such waiver shall bind all future holders of shares of Series A Preferred Stock.

(m)          Reservation of Stock Issuable Upon Conversion. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock solely for the purpose of effecting the conversion of the shares of the Series A Preferred Stock, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all then outstanding shares of the Series A Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series A Preferred Stock, the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.

1.5          Redemption.

(a)           Redemption Dates.  If the Series A Preferred Stock has not been converted pursuant to Section 1.4 above prior to the fourth anniversary of the Original Issue Date and a holder of Series A Preferred Stock provides the Redemption Notice in accordance with Section 1.5(d) below, the Company shall redeem (to the extent that such redemption shall not violate any applicable provisions of the laws of the State of Utah) at a price equal to (i) the Original Issue Price per share, plus (ii) an amount equal to any declared but unpaid and any accrued but unpaid dividends thereon (such amount is hereinafter referred to as the “Redemption Price”), in two equal yearly installments beginning on the next anniversary of the Original Issue Date which anniversary is at least 90 days following the date the Company receives the Redemption Notice (the “Redemption Date”).

(b)           Unredeemed Shares.  If the Company is unable at any Redemption Date to redeem any shares of Series A Preferred Stock then to be redeemed (“Unredeemed Shares”) because such redemption would violate the applicable laws of the State of Utah, then the Company shall redeem such shares as soon thereafter as redemption would not violate such laws.  If the Company fails to redeem any shares of Series A Preferred Stock then to be redeemed within 30 days of the applicable Redemption Date, the then applicable Conversion Price for the Series A Preferred Stock will be immediately reduced to an amount equal to 90% of such then applicable Conversion Price, and, until such redemption has been made, such applicable Conversion Price will be further reduced on the 90^th day following the applicable Redemption Date and on the last day of each 90-day period thereafter, to an amount equal to 90% of the applicable Conversion Price in effect immediately prior to each such reduction.

(c)           Partial Redemption.  In the event of any redemption of only a part of the then outstanding Series A Preferred Stock (including Unredeemed Shares), the Company shall effect such redemption pro rata among the holders thereof electing redemption (based on the number of shares of Series A Preferred Stock held by such holders as of 90 days prior to the initial Redemption Date).

(d)           Redemption Notice and Procedure.  If a holder of Series A Preferred Stock elects to redeem its Series A Preferred Stock, such holder must provide written notice to the Company of such election (the “Redemption Notice”) at least 90 days in advance of the initial Redemption Date.  On or

 

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prior to the each Redemption Date or other redemption date, each holder of Series A Preferred Stock to be redeemed shall surrender such holder’s certificate or certificates representing such shares to the Company and thereupon the Redemption Price of such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof and each surrendered certificate shall be canceled.  In the event less than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares.  From and after the Redemption Date or other redemption date unless there shall have been a default in payment of the Redemption Price, all rights of the holders of the Series A Preferred Stock designated for redemption (except the right to receive the Redemption Price without interest upon surrender of their certificate or certificates) shall cease with respect to such shares, and such shares shall not thereafter be transferred on the books of the Company or be deemed to be outstanding for any purpose whatsoever.

(e)           Effect of Redemption.  Except as provided in this Section 1.5(e), the Company shall have no right to redeem the shares of Series A Preferred Stock.  Any shares of Series A Preferred Stock so redeemed shall be permanently retired, shall no longer be deemed outstanding and shall not under any circumstances be reissued, and the Company may from time to time take such appropriate corporate action as may be necessary to reduce the authorized Series A Preferred Stock accordingly.

1.6          Voting.

(a)           Series A Preferred Stock.  The holder of each share of Series A Preferred Stock shall have the right to one vote for each share of Common Stock into which such Series A Preferred Stock could then be converted (with any fractional share determined on an aggregate conversion basis not being able to be voted), and with respect to such vote, such holder shall have full voting rights and powers equal to the voting rights and powers of the holders of Common Stock (except as otherwise expressly provided herein or as required by law, voting together with the Common Stock as a single class), and shall be entitled to notice of any shareholders’ meeting in accordance with the bylaws of the Company.  Fractional votes shall not, however, be permitted and any fractional voting rights resulting from the above formula (after aggregating all shares into which shares of Series A Preferred Stock held by each holder could be converted), shall be disregarded.

(b)           Election of Directors.  The number of directors of the Company shall be fixed from time to time according to the Company’s Bylaws.  All members of the Company’s Board of Directors shall be elected by the holders of Common Stock and Series A Preferred Stock, voting together as a single class.  Shareholders do not have the right to cumulate their votes for the election of directors and elections need not be by written ballot unless required by the Bylaws or applicable law.

1.7          Protective Provisions.  As long as any of the Series A Preferred Stock shall be issued and outstanding, the Company shall not, without first obtaining the approval (by vote or written consent as provided by law) of the holders of 65% of the then outstanding shares of the Series A Preferred Stock:

(a)           authorize, create or issue, or obligate itself to authorize, create or issue, any other equity security (by reclassification or otherwise), including any other security convertible into or exercisable for any equity security having a preference over, or on parity with, the Series A Preferred Stock with respect to voting, dividends or upon liquidation;

(b)           amend or repeal or add any provision to its Articles of Incorporation or Bylaws, if such action would (i) adversely affect the preferences, rights, privileges, or powers of, or restrictions

 

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provided for the benefit of the Series A Preferred Stock or (ii) increase or decrease the number of authorized shares of any class of stock or the Series A Preferred;

(c)           increase the number of shares of Common Stock issuable pursuant to the Company’s 1999 Stock Option Plan above 70,558,406;

(d)           increase the number of shares of Common Stock issuable pursuant to the Company’s 2000 Stock Purchase Plan above 10,000,000; or

(e)           amend this Section 1.7.”

3.             The Amendment was approved and adopted by the Board of Directors of the Company on March 4, 2002 without shareholder action because shareholder action was not required pursuant to Sections 16-10a-602 and 16-10a-1002 of the Act.

 

IN WITNESS WHEREOF, these Articles of Amendment are hereby executed as of the 4th day of March, 2002.

 

 

/s/ Patrick Byrne

Patrick Byrne

President and Chief Executive Officer

 

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AMENDED AND RESTATED ARTICLES OF INCORPORATION
of
OVERSTOCK.COM, INC.

(To Become Effective 5:00 p.m. September 21, 2000)

The undersigned, Patrick Byrne, being the President and Chief Executive Officer of deals.com, Inc., a Utah corporation (the “Company”), hereby certifies the following:

1.             The Articles of Incorporation of the Company have been amended and restated to read as follows:

ARTICLE I

NAME

The name of this corporation is “Overstock.com, Inc.” (the “Company”).

ARTICLE II

The purposes for which the Company is organized is to engaged in any lawful activity allowed by the Utah Revised Business Corporation Act (the “Act”).

ARTICLE III

CAPITALIZATION

Authorized Capital.  The aggregate number of shares which the Company shall have the authority to issue is Five Hundred Million (500,000,000) shares.  Of this amount, Four Hundred and Fifty Million (450,000,000) shares shall be designated “Common Stock,” with no par value, and Fifty Million (50,000,000) shares shall be designated “Preferred Stock,” having rights, preferences, qualifications, limitations or restrictions as set forth herein and as determined at some future time by the Company’s Board of Directors in its discretion pursuant to Section 602 of the Act.

Common Stock.  The Common Stock shall have unlimited voting rights with each share of Common Stock entitling the holder thereof to one vote.  The Common Stock is entitled to receive dividends when, as, and if declared by the Board of Directors.  Subject to the terms of the Preferred Stock, the Common Stock is entitled to the net assets of the Company upon liquidation.

---

ARTICLE IV

The address of the registered office of the Corporation is 2855 East Cottonwood Parkway, Suite 500, Salt Lake City, Utah  84121.  The name of the registered agent of the Corporation at that address is Jason Lindsey.

ARTICLE V

LIMITATION OF LIABILITY

A director of the Company shall not be personally liable to the Company or its stockholders for monetary damages for any action taken or any failure to take any action as a director, except liability for:  (i) the amount of a financial benefit received by a director to which such director is not entitled; (ii) an intentional infliction of harm on the Company or the shareholders; (iii) a violation of Section 842 of the Act; or (iv) an intentional violation of criminal law.  If the laws of the State of Utah are amended after the adoption of these Amended and Restated Articles of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Company shall be eliminated or limited to the fullest extent permitted by the laws of the State of Utah, as so amended.  Any repeal or modification of the foregoing paragraph by the stockholders of the Company shall not adversely affect any right or protection of a director of the Company existing at the time of such repeal or modification.

[End of Amended and Restated Articles of Incorporation]

2.             These Amended and Restated Articles of Incorporation were approved and recommended to the shareholders of the Company by its Board of Directors on August 18, 2000.

3.             The Company has 157,023,527 shares of outstanding Common Stock that were entitled to vote on these Amended and Restated Articles of Incorporation.  Pursuant to written consent, effective as of September 11, 2000, the holders of 88,216,556 shares of Common Stock (56.1% of the shares issued and outstanding) consented to the Amended and Restated Articles of Incorporation as stated herein, and therefore, the number of shares voting in favor of the proposed Amended and Restated Articles of Incorporation by each voting group entitled to vote thereon was sufficient for approval by that voting group.

4.             These Amended and Restated Articles of Incorporation shall, in accordance with Section 129 of the Act, become effective at 5:00 p.m. September 21, 2000.

 

IN WITNESS WHEREOF, the undersigned has executed these Amended and Restated Articles of Incorporation as of this 18th day of September, 2000.

        /s/ Karla Bourland                                               

Karla Bourland, President

 

 

Exhibit 3.1B

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION OF

 

OVERSTOCK.COM, INC.

 

                Overstock.com, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), certifies that:

A.                                   The name of the Corporation is Overstock.com, Inc.  The Corporation’s original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on February 27, 2002.

B.                                     This Amended and Restated Certificate of Incorporation was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, and restates, integrates and further amends the provisions of the Corporation’s Certificate of Incorporation.

C.                                     The text of the Certificate of Incorporation is amended and restated to read as set forth in EXHIBIT A attached hereto.

 

 

                IN WITNESS WHEREOF, Overstock.com, Inc. has caused this Amended and Restated Certificate of Incorporation to be signed by Patrick Byrne, a duly authorized officer of the Corporation, on March 15, 2002.

 

 

 

	/s/ Patrick M. Byrne
	Patrick Byrne, President and Chief Executive Officer

Exhibit A

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

OVERSTOCK.COM, INC.

ARTICLE I

NAME

The name of this corporation is “Overstock.com, Inc.” (the “Company”).

ARTICLE II

PURPOSE

The purposes for which the Company is organized is to engage in any lawful activity allowed by Delaware General Corporation Law (the “DGCL”).

ARTICLE III

CAPITALIZATION

Authorized Capital.  The aggregate number of shares which the Company shall have the authority to issue is Five Hundred Million (500,000,000) shares.  Of this amount, Four Hundred and Fifty Million (450,000,000) shares shall be designated “Common Stock,” with a par value of $0.0001, and Fifty Million (50,000,000) shares shall be designated “Preferred Stock,” with a par value of $0.0001, having rights, preferences, qualifications, limitations or restrictions as set forth herein and as determined at some future time by the Company’s Board of Directors in its discretion pursuant to Section 151 of the DGCL.

Common Stock.  The Common Stock shall have unlimited voting rights with each share of Common Stock entitling the holder thereof to one vote.  The Common Stock is entitled to receive dividends when, as, and if declared by the Board of Directors.  Subject to the terms of the Preferred Stock, the Common Stock is entitled to the net assets of the Company upon liquidation.

Preferred Stock.

 

3.1  Designation of Series A Preferred Stock.

 

(a)   Series A Preferred Stock.  Thirty million eight hundred thirty-eight thousand eight hundred sixteen (30,838,816) shares of the authorized 50,000,000 shares are hereby designated as “Series A Preferred Stock.”  To the extent that shares of Series A Preferred Stock are, following their initial issuance, converted as hereinafter provided or repurchased by the Company, the number of shares in such series shall be automatically reduced, without further action by the stockholders or the Board of Directors of the Company.

(b)   Definitions.  For purposes of this Article III, the following definitions shall apply:

 

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(i)    “Conversion Price” shall initially mean $0.2432 per share for the Series A Preferred Stock (subject to adjustment as set forth elsewhere herein).

(ii)   “Convertible Securities” shall mean any evidences of indebtedness, shares or other securities (other than shares of Series A Preferred Stock) convertible into or exchangeable for Common Stock.

(iii)  “Distribution” shall mean the transfer of cash or other property without consideration whether by way of dividend or otherwise, payable other than in Common Stock, or the purchase or redemption of shares of the Company for cash or property other than:  (i) repurchases of Common Stock issued to or held by employees, officers, directors or consultants of the Company or its subsidiaries upon termination of their employment or services pursuant to agreements providing for the right of said repurchase, (ii) repurchases of Common Stock issued to or held by employees, officers, directors or consultants of the Company or its subsidiaries pursuant to rights of first refusal contained in agreements providing for such right, (iii) repurchase of capital stock of the Company in connection with the settlement of disputes with any stockholder, or (iv) any other repurchase or redemption of capital stock of the Company approved by the holders of a majority of the Common Stock of the Company and the holders of at least 65% of the Series A Preferred Stock of the Company voting as separate classes.

(iv)  “Dividend Rate” for the Series A Preferred Stock, the Dividend Rate shall be an annual, fixed dividend of $0.019456 per share (subject to adjustment from time to time for Recapitalizations of Series A Preferred as set forth elsewhere herein).

(v)   “Liquidation Preference” shall mean $0.2432 per share for the Series A Preferred Stock (subject to adjustment from time to time for Recapitalizations of Series A Preferred Stock as set forth elsewhere herein).

(vi)  “Merger or Consolidation” shall mean the acquisition of the Company by another entity by means of any transaction or series of related transactions (including, without limitation, any stock acquisition, reorganization, merger or consolidation but excluding any sale of stock for capital raising purposes) other than a transaction or series of transactions in which the holders of the voting securities of the Company outstanding immediately prior to such transaction continue to retain (either by such voting securities remaining outstanding or by such voting securities being converted into voting securities of the surviving or resulting entity), as a result of shares in the Company held by such holders prior to such transaction, at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving or resulting entity outstanding immediately after such transaction or series of transactions.

(vii) “Options” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.

(viii) “Original Issue Date” shall mean the date of the first issuance of any shares of Series A Preferred Stock.

(ix)   “Original Issue Price” shall mean $0.2432 per share for the Series A Preferred Stock (subject to adjustment from time to time for any Recapitalization of Series A Preferred Stock as set forth elsewhere herein).

 

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(x)    “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 appropriately adjusted for Recapitalizations) 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.

(xi)   “Recapitalization” shall mean any stock dividend, stock split, combination of shares, reorganization, recapitalization, reclassification or other similar event.

(xii) “Securities Act” shall mean the Securities Act of 1933, as amended.

3.2  Dividends.

(a)   Series A Preferred Stock.  The holders of outstanding shares of Series A Preferred Stock shall be entitled, when and if declared by the Board of Directors, to receive dividends out of any assets at the time legally available therefor, at the Dividend Rate payable in preference and priority to any declaration or payment of any Distribution on any other class or series of capital stock of the Company.  Payment of declared and accrued (pursuant to Section 3.2(c)) but unpaid dividends shall be in cash or, at the mutual agreement of the holder of such shares and the Company, in Common Stock, with the number of shares of Common Stock per holder into which such dividends may be converted being determined by dividing the aggregate amount of the declared but unpaid and accrued but unpaid dividends due such holder by the then fair market value of one share of Common Stock.  Such dividend preference shall not be cumulative except as expressly provided in Section 3.2(c).

(b)   Dividends on Common Stock.  After the payment or setting aside for payment of the dividends as described in Section 3.2(a) and 3.2(c), any additional dividends (other than dividends payable solely in Common Stock) declared or paid in any fiscal year shall be declared or paid among the holders of the Series A Preferred Stock and Common Stock then outstanding in proportion to the greatest whole number of shares of Common Stock which would be held by each such holder if all shares of Series A Preferred Stock were converted at the then-effective Conversion Rate (as defined in Section 3.4 hereof).

(c)   Cumulative Dividends.  In the event that the Company has not by March 31, 2003, completed its initial public offering of its Common Stock pursuant to an effective registration statement filed under the Securities Act, the dividends described in Section 3.2(a) shall become cumulative.  Such dividends shall be cumulative from April 1, 2003 and payable (i) when and as declared by the Board of Directors, (ii) upon a Liquidation Event (as defined in Section 3.3(d) below),  (iii) upon a Qualified Public Offering or (iv) pursuant to Section 3.5 below.

(d)   Non-Cash Distributions.

(i)    Distributions other than Common Stock.  Except as provided in subsection (ii) below, whenever a Distribution provided for in this Section 3.2 shall be payable in property other than cash, the value of such Distribution shall be deemed to be the fair market value of such property as determined in good faith by the Board of Directors.

 

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(ii)       Common Stock.  For purposes of this Section 3.2, the fair market value of one share of common stock shall be: (x) the initial “price to public” specified in the final prospectus with respect to a Qualified Public Offering; (y) the value received by the holders of Common Stock pursuant to a Merger or Consolidation for each share of such securities; or (z) as determined pursuant to Section 3.2(d)(i) above if there is no Qualified Public Offering or Merger or Consolidation.

3.3  Liquidation Rights.

(a)   Liquidation Preference.  In the event of any liquidation, dissolution or winding up of the Company, either voluntary or involuntary, the holders of the Series A Preferred Stock shall be entitled to receive, prior and in preference to any Distribution of any of the assets of the Company to the holders of the Common Stock by reason of their ownership of such stock, an amount per share for each share of Series A Preferred Stock held by them equal to the sum of (i) the Liquidation Preference and (ii) all declared but unpaid and accrued but unpaid dividends on such share of Series A Preferred Stock.  If, upon the liquidation, dissolution or winding up of the Company, the assets of the Company legally available for distribution to the holders of the Series A Preferred Stock are insufficient to permit the payment to such holders of the full amounts specified in this Section 3.3(a), then the entire assets of the Company legally available for distribution shall be distributed with equal priority and pro rata among the holders of the Series A Preferred Stock in proportion to the full amounts they would otherwise be entitled to receive pursuant to this Section 3.3(a).

(b)   Common Stock Liquidation Preference.  After the payment to the holders of Series A Preferred Stock of the full preferential amounts specified above, the remaining assets of the Company,  in an amount not to exceed the amount of the common stock paid in capital as reflected on the Company’s December 31, 2001 audited balance sheet, legally available for distribution by the Company, shall be distributed with equal priority and pro rata among the holders of the Common Stock in proportion to the number of shares of Common Stock held by them, without the shares of Series A Preferred Stock being treated for this purpose as if they had been converted to shares of Common Stock.  If, upon the liquidation, dissolution or winding up of the Company, the assets of the Company legally available for distribution to the holders of Common Stock are insufficient to permit the payment to such holders of the full amounts specified in this Section 3.3(b), then the entire assets of the Company legally available for distribution after payment to the holders of Series A Preferred of the full preferential amounts specified above shall be distributed with equal priority and pro rata among the holders of Common Stock in proportion to the full amounts they would otherwise be entitled to receive pursuant to this Section 3.3(b).

(c)   Remaining Assets.  After the payment to the holders of Series A Preferred Stock and Common Stock of the full preferential amounts specified above in Sections 3.3(a) and 3.3(b), the entire remaining assets of the Company legally available for distribution by the Company shall be distributed with equal priority and pro rata among the holders of the Series A Preferred Stock and Common Stock in proportion to the number of shares of Common Stock held by them, with the shares of Series A Preferred Stock being treated for this purpose as if they had been converted to shares of Common Stock at the then applicable Conversion Rate.

(d)   Liquidation Events.  For purposes of this Section 3.3, a liquidation, dissolution or winding up of the Company (a “Liquidation Event”) shall be deemed to be occasioned by, or to include, (i) a Merger or Consolidation; (ii) a sale, lease or other conveyance of all or substantially all of the assets

 

5

 

of the Company; or (iii) any liquidation, dissolution or winding up of the Company, whether voluntary or involuntary.

(e)   Valuation of Non-Cash Consideration.  If any assets of the Company distributed to stockholders in connection with any liquidation, dissolution, or winding up of the Company are other than cash, then the value of such assets shall be their fair market value as determined in good faith by the Board of Directors, except that any publicly-traded securities to be distributed to stockholders in a liquidation, dissolution, or winding up of the Company shall be valued as follows:

(i)    If the securities are then traded on a national securities exchange or the Nasdaq Stock Market (or a similar national quotation system), then the value of the securities shall be deemed to be to the average of the closing prices of the securities on such exchange or system over the 10 trading day period ending 5 trading days prior to the Distribution;

(ii)   if the securities are actively traded over-the-counter, then the value of the securities shall be deemed to be the average of the closing bid prices of the securities over the 10 trading day period ending 5 trading days prior to the Distribution.

In the event of a merger or other acquisition of the Company by another entity, the Distribution date shall be deemed to be the date such transaction closes.

3.4  Conversion.  The holders of the Series A Preferred Stock shall have conversion rights as follows (the “Conversion Rights”):

(a)   Right to Convert.  Subject to the provisions of Section 3.4(b), each share of Series A Preferred Stock shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Company or any transfer agent for the Series A Preferred Stock, into that number of fully-paid, nonassessable shares of Common Stock determined by dividing the Original Issue Price of the Series A Preferred Stock by the then effective Conversion Price of the Series A Preferred Stock.  (The number of shares of Common Stock into which each share of Series A Preferred Stock may be converted is hereinafter referred to as the “Conversion Rate” for the Series A Preferred Stock.)  Upon any decrease or increase in the Conversion Price for the Series A Preferred Stock, as described in this Section 3.4, the Conversion Rate for the Series A Preferred Stock shall be appropriately increased or decreased.

(b)   Automatic Conversion.  Each share of Series A Preferred Stock shall automatically be converted into that number of fully-paid, nonassessable shares of Common Stock determined by dividing (i) the sum of the Original Issue Price plus all declared but unpaid and accrued but unpaid dividends, if applicable, by (ii) the then effective Conversion Price for such share, upon the earlier to occur of: (1) immediately prior to the closing of the Qualified Public Offering or (2) the written consent of the holders of at least 65% of the then outstanding shares of Series A Preferred Stock (each of the events referred to in (1) and (2) are referred to herein as an “Automatic Conversion Event”).

(c)   Mechanics of Conversion.  No fractional shares of Common Stock shall be issued upon conversion of Series A Preferred Stock.  In lieu of any fractional shares to which the holder would otherwise be entitled, the Company shall pay cash equal to such fraction multiplied by the then fair market value of a share of Common Stock as determined by the Board of Directors.  For such purpose, all shares of Series A Preferred Stock held by each holder of Series A Preferred Stock shall be

 

6

 

aggregated, and any resulting fractional share of Common Stock shall be paid in cash.  Before any holder of Series A Preferred Stock shall be entitled to convert the same into full shares of Common Stock, and to receive certificates therefor, such holder shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Company or of any transfer agent for the Series A Preferred Stock, and shall give written notice to the Company at such office that such holder elects to convert the same; provided, however, that on the date of an Automatic Conversion Event, the outstanding shares of Series A Preferred Stock shall be converted automatically, without any further action by the holders of such shares and whether or not the certificates representing such shares are surrendered to the Company or its transfer agent; provided further, however, that the Company shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such Automatic Conversion Event unless either the certificates evidencing such shares of Series A Preferred Stock are delivered to the Company or its transfer agent as provided above, or the holder notifies the Company or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Company to indemnify the Company from any loss incurred by it in connection with such certificates.  On the date of the occurrence of an Automatic Conversion Event, each holder of record of shares of Series A Preferred Stock shall be deemed to be the holder of record of the Common Stock issuable upon such conversion, notwithstanding that the certificates representing such shares of Series A Preferred Stock shall not have been surrendered at the office of the Company, that notice from the Company shall not have been received by any holder of record of shares of Series A Preferred Stock, or that the certificates evidencing such shares of Common Stock shall not then be actually delivered to such holder.

(d)   Adjustments to Conversion Price for Diluting Issues.

(i)    Special Definition.  For purposes of this Section 3.4(d), “Additional Shares of Common” shall mean all shares of Common Stock issued (or, pursuant to Section 3.4(d)(iii), deemed to be issued) by the Company after the Original Issue Date other than:

(1)   shares of Common Stock issued or issuable upon conversion of shares of Series A Preferred Stock;

(2)   up to 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);

(3)   shares of Common Stock issued upon the exercise, exchange, adjustment or conversion of Options or Convertible Securities outstanding as of March 4, 2002 of Overstock.com, Inc., a Utah corporation and predecessor to the Company (other than options outstanding pursuant to stock plans covered under Section 3.4(d)(i)(2) above);

(4)   shares of Common Stock issued or issuable pursuant to a stock split, as a dividend or distribution on Series A Preferred Stock or pursuant to any event for which adjustment is made pursuant to Section 3.4(e), (f) or (g) hereof;

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

 

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

(7)   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;

(8)   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 is approved by a majority of the Board of Directors;

(9)   shares of Common Stock which the holders of at least 65% of the then outstanding Series A Preferred Stock agree in writing shall not constitute Additional Shares of Common, each such agreement to be deemed effective immediately prior to the related issuance.

(ii)   No Adjustment of Conversion Price.  No adjustment in the Conversion Price of the Series A Preferred Stock shall be made in respect of the issuance of Additional Shares of Common unless the consideration per share (as determined pursuant to Section 3.4(d)(v)) for an Additional Share of Common issued or deemed to be issued by the Company is less than the Conversion Price in effect on the date of, and immediately prior to such issue, for the Series A Preferred Stock.

(iii)  Deemed Issue of Additional Shares of Common.  In the event the Company at any time or from time to time after the Original Issue Date shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares (as set forth in the instrument relating thereto without regard to any provisions contained therein for a subsequent adjustment of such number) of Common Stock issuable upon the exercise of such Options or, in the case of Convertible Securities, the conversion or exchange of such Convertible Securities or, in the case of Options for Convertible Securities, the exercise of such Options and the conversion or exchange of the underlying Convertible Securities, shall be deemed to have been issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date, provided that in any such case in which shares are deemed to be issued:

(1)   no further adjustment in the Conversion Price of the Series A Preferred Stock shall be made upon the subsequent issue of Convertible Securities or shares of Common Stock in connection with the exercise of such Options or conversion or exchange of such Convertible Securities;

(2)   if such Options or Convertible Securities by their terms provide, with the passage of time or otherwise, for any increase in the consideration payable to the Company, or decrease in the number of shares of Common Stock issuable, upon the exercise, conversion or exchange thereof, the Conversion Price of the Series A Preferred Stock computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto), and any subsequent adjustments based thereon, shall, upon any such increase or decrease becoming effective, be recomputed to reflect such increase or decrease insofar as it affects such Options or the rights of conversion or exchange under such Convertible Securities;

 

8

 

(3)   no readjustment pursuant to clause (2) above shall have the effect of increasing the Conversion Price of the Series A Preferred Stock to an amount which exceeds the lower of (i) the Conversion Price of the Series A Preferred Stock on the original adjustment date, or (ii) the Conversion Price of the Series A Preferred Stock that would have resulted from any issuance of Additional Shares of Common between the original adjustment date and such readjustment date;

(4)   upon the expiration of any such Options or any rights of conversion or exchange under such Convertible Securities which shall not have been exercised, the Conversion Price computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto) and any subsequent adjustments based thereon shall, upon such expiration, be recomputed as if:

a)     in the case of Convertible Securities or Options for Common Stock, the only Additional Shares of Common issued were the shares of Common Stock, if any, actually issued upon the exercise of such Options or the conversion or exchange of such Convertible Securities and the consideration received therefor was the consideration actually received by the Company for the issue of such exercised Options plus the consideration actually received by the Company upon such exercise or for the issue of all such Convertible Securities which were actually converted or exchanged, plus the additional consideration, if any, actually received by the Company upon such conversion or exchange, and

b)    in the case of Options for Convertible Securities, only the Convertible Securities, if any, actually issued upon the exercise thereof were issued at the time of issue of such Options, and the consideration received by the Company for the Additional Shares of Common deemed to have been then issued was the consideration actually received by the Company for the issue of such exercised Options, plus the consideration deemed to have been received by the Company (determined pursuant to Section 3.4(d)(v)) upon the issue of the Convertible Securities with respect to which such Options were actually exercised; and

(5)   if such record date shall have been fixed and such Options or Convertible Securities are not issued on the date fixed therefor, the adjustment previously made in the Conversion Price which became effective on such record date shall be canceled as of the close of business on such record date, and thereafter the Conversion Price shall be adjusted pursuant to this Section 3.4(d)(iii) as of the actual date of their issuance.

(iv)  Adjustment of Conversion Price Upon Issuance of Additional Shares of Common.  In the event this Company shall issue Additional Shares of Common (including Additional Shares of Common deemed to be issued pursuant to Section 3.4(d)(iii)) without consideration or for a consideration per share less than the applicable Conversion Price of the Series A Preferred Stock in effect on the date of and immediately prior to such issue, then, the Conversion Price of the affected series of Series A Preferred Stock shall be reduced, concurrently with such issue, to a price equal to the consideration per share of such Additional Shares of Common; provided, however, that if, immediately prior to any adjustment to the Conversion Price, the then current Conversion Price is less than $0.1702 (as adjusted for any Recapitalizations after the Original Issue Date), then, the Conversion Price of the Series A Preferred Stock shall be reduced, concurrently with such issue, to a price (calculated to the nearest cent) determined by multiplying such Conversion Price by a fraction, the numerator of which shall be the number of shares of Common Stock and Preferred Stock outstanding immediately prior to such issue plus the number of shares which the aggregate consideration received by the Company for the total number of Additional Shares of Common so issued would purchase at such Conversion Price, and

 

9

 

the denominator of which shall be the number of shares of Common Stock and Preferred Stock outstanding immediately prior to such issue plus the number of such Additional Shares of Common so issued.  For the purposes of this Section 3.4(d)(iv), shares of Common Stock issuable upon (i) conversion of outstanding shares of Preferred Stock and (ii) exercise of Options or conversion or exchange of Convertible Securities shall not be deemed to be outstanding.

(v)   Determination of Consideration.  For purposes of this Section 3.4(d), the consideration received by the Company for the issue (or deemed issue) of any Additional Shares of Common shall be computed as follows:

(1)   Cash and Property.  Such consideration shall:

a)     insofar as it consists of cash, be computed at the aggregate amount of cash received by the Company excluding amounts paid or payable for accrued interest or dividends;

b)    insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined in good faith by the Board of Directors; and

c)     in the event Additional Shares of Common are issued together with other shares or securities or other assets of the Company for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (a) and (b) above, as reasonably determined in good faith by the Board of Directors.

(2)   Options and Convertible Securities.  The consideration per share received by the Company for Additional Shares of Common deemed to have been issued pursuant to Section 3.4(d)(iii) shall be determined by dividing

a)     the total amount, if any, received or receivable by the Company as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Company upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities by

b)    the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities.

(e)   Adjustments for Subdivisions or Combinations of Common Stock.  In the event the outstanding shares of Common Stock shall be subdivided (by stock split, by payment of a stock dividend or otherwise), into a greater number of shares of Common Stock, the Conversion Price of the Series A Preferred Stock in effect immediately prior to such subdivision shall, concurrently with the effectiveness of such subdivision, be proportionately decreased.  In the event the outstanding shares of Common Stock shall be combined (by reclassification or otherwise) into a lesser number of shares of Common Stock,

 

10

 

the Conversion Price of the Series A Preferred Stock in effect immediately prior to such combination shall, concurrently with the effectiveness of such combination, be proportionately increased.

(f)    Adjustments for Subdivisions or Combinations of Series A Preferred Stock.  In the event the outstanding shares of Series A Preferred Stock shall be subdivided (by stock split, by payment of a stock dividend or otherwise), into a greater number of shares of Series A Preferred Stock, the Dividend Rate, Original Issue Price and Liquidation Preference of the Series A Preferred Stock in effect immediately prior to such subdivision shall, concurrently with the effectiveness of such subdivision, be proportionately decreased.  In the event the outstanding shares of Series A Preferred Stock shall be combined (by reclassification or otherwise) into a lesser number of shares of Series A Preferred Stock, the Dividend Rate, Original Issue Price and Liquidation Preference of the affected series of Series A Preferred Stock in effect immediately prior to such combination shall, concurrently with the effectiveness of such combination, be proportionately increased.

(g)   Adjustments for Reclassification, Exchange and Substitution.  Subject to Section 3.3 above (the “Liquidation Rights”), if the Common Stock issuable upon conversion of the Series A Preferred Stock shall be changed into the same or a different number of shares of any other class or classes of stock, whether by capital reorganization, reclassification or otherwise (other than a subdivision or combination of shares provided for above), then, in any such event, in lieu of the number of shares of Common Stock which the holders would otherwise have been entitled to receive, each holder of such Series A Preferred Stock shall have the right thereafter to convert such shares of Series A Preferred Stock into a number of shares of such other class or classes of stock which a holder of the number of shares of Common Stock deliverable upon conversion of such Series A Preferred Stock immediately before that change would have been entitled to receive in such reorganization or reclassification, all subject to further adjustment as provided herein with respect to such other shares.

(h)   No Impairment.  The Company will not through any amendment of its Amended and Restated Certificate of Incorporation, as amended hereby (its “Certificate of Incorporation”), or through any reorganization, transfer of assets, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company but will at all times in good faith assist in the carrying out of all the provisions of this Section 3.4 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the holders of Series A Preferred Stock against impairment.  Notwithstanding the foregoing, nothing in this Section 3.4(h) shall prohibit the Company from amending its Certificate of Incorporation with the requisite consent of its stockholders and the board of directors.

(i)    Adjustment in the Event of No Qualified Public Offering.  Notwithstanding anything herein to the contrary, if the Company has not closed a Qualified Public Offering by March 31, 2003, the then-applicable Conversion Price for each share of Series A Preferred will automatically adjust down to the lower of $0.1702 (as adjusted for any Recapitalizations after the Original Issue Date) or the fair market value per share of the Company’s Common Stock.  For purposes of this Section 3.4(i), the fair market value of one share of Common Stock shall be: (A) the price per share of the Common Stock sold in the transaction in which the Company sells shares of Common Stock that is consummated during 2002 or 2003 that is nearest in time to the time of adjustment pursuant to this Section 3.4(i), or (B) if no such transaction has occurred, as determined in good faith by the Board of Directors.

 

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(j)    The Conversion Price is subject to adjustment pursuant to the provisions of Section 3.5 below.

(k)   Certificate as to Adjustments.  Upon the occurrence of each adjustment or readjustment of the Conversion Price pursuant to this Section 3.4, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of Series A Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based.  The Company shall, upon the written request at any time of any holder of Series A Preferred Stock, furnish or cause to be furnished to such holder a like certificate setting forth (i) such adjustments and readjustments, (ii) the Conversion Price at the time in effect and (iii) the number of shares of Common Stock and the amount, if any, of other property which at the time would be received upon the conversion of Series A Preferred Stock.

(l)    Waiver of Adjustment of Conversion Price.  Notwithstanding anything herein to the contrary, any downward adjustment of the Conversion Price of the Series A Preferred Stock may be waived, either prospectively or retroactively and either generally or in a particular instance, by the consent or vote of the holders of at least 65% of the outstanding shares of Series A Preferred Stock. Any such waiver shall bind all future holders of shares of Series A Preferred Stock.

(m)  Reservation of Stock Issuable Upon Conversion. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock solely for the purpose of effecting the conversion of the shares of the Series A Preferred Stock, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all then outstanding shares of the Series A Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series A Preferred Stock, the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.

3.5  Redemption.

(a)   Redemption Dates.  If the Series A Preferred Stock has not been converted pursuant to Section 3.4 above prior to the fourth anniversary of the Original Issue Date and a holder of Series A Preferred Stock provides the Redemption Notice in accordance with Section 3.5(d) below, the Company shall redeem (to the extent that such redemption shall not violate any applicable provisions of the laws of the State of Delaware) at a price equal to (i) the Original Issue Price per share, plus (ii) an amount equal to any declared but unpaid and any accrued but unpaid dividends thereon (such amount is hereinafter referred to as the “Redemption Price”), in two equal yearly installments beginning on the next anniversary of the Original Issue Date which anniversary is at least 90 days following the date the Company receives the Redemption Notice (the “Redemption Date”).

(b)   Unredeemed Shares.  If the Company is unable at any Redemption Date to redeem any shares of Series A Preferred Stock then to be redeemed (“Unredeemed Shares”) because such redemption would violate the applicable laws of the State of Delaware, then the Company shall redeem such shares as soon thereafter as redemption would not violate such laws.  If the Company fails to redeem any shares of Series A Preferred Stock then to be redeemed within 30 days of the applicable Redemption Date, the then applicable Conversion Price for the Series A Preferred Stock will be

 

12

 

immediately reduced to an amount equal to 90% of such then applicable Conversion Price, and, until such redemption has been made, such applicable Conversion Price will be further reduced on the 90^th day following the applicable Redemption Date and on the last day of each 90-day period thereafter, to an amount equal to 90% of the applicable Conversion Price in effect immediately prior to each such reduction.

(c)   Partial Redemption.  In the event of any redemption of only a part of the then outstanding Series A Preferred Stock (including Unredeemed Shares), the Company shall effect such redemption pro rata among the holders thereof electing redemption (based on the number of shares of Series A Preferred Stock held by such holders as of 90 days prior to the initial Redemption Date).

(d)   Redemption Notice and Procedure.  If a holder of Series A Preferred Stock elects to redeem its Series A Preferred Stock, such holder must provide written notice to the Company of such election (the “Redemption Notice”) at least 90 days in advance of the initial Redemption Date.  On or prior to the each Redemption Date or other redemption date, each holder of Series A Preferred Stock to be redeemed shall surrender such holder’s certificate or certificates representing such shares to the Company and thereupon the Redemption Price of such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof and each surrendered certificate shall be canceled.  In the event less than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares.  From and after the Redemption Date or other redemption date unless there shall have been a default in payment of the Redemption Price, all rights of the holders of the Series A Preferred Stock designated for redemption (except the right to receive the Redemption Price without interest upon surrender of their certificate or certificates) shall cease with respect to such shares, and such shares shall not thereafter be transferred on the books of the Company or be deemed to be outstanding for any purpose whatsoever.

(e)   Effect of Redemption.  Except as provided in this Section 3.5(e), the Company shall have no right to redeem the shares of Series A Preferred Stock.  Any shares of Series A Preferred Stock so redeemed shall be permanently retired, shall no longer be deemed outstanding and shall not under any circumstances be reissued, and the Company may from time to time take such appropriate corporate action as may be necessary to reduce the authorized Series A Preferred Stock accordingly.

3.6  Voting.

(a)   Series A Preferred Stock.  The holder of each share of Series A Preferred Stock shall have the right to one vote for each share of Common Stock into which such Series A Preferred Stock could then be converted (with any fractional share determined on an aggregate conversion basis not being able to be voted), and with respect to such vote, such holder shall have full voting rights and powers equal to the voting rights and powers of the holders of Common Stock (except as otherwise expressly provided herein or as required by law, voting together with the Common Stock as a single class), and shall be entitled to notice of any stockholders’ meeting in accordance with the bylaws of the Company.  Fractional votes shall not, however, be permitted and any fractional voting rights resulting from the above formula (after aggregating all shares into which shares of Series A Preferred Stock held by each holder could be converted), shall be disregarded.

(b)   Election of Directors.  The number of directors of the Company shall be fixed from time to time according to the Company’s Bylaws.  All members of the Company’s Board of Directors shall be elected by the holders of Common Stock and Series A Preferred Stock, voting together as a

 

13

 

single class.  Stockholders do not have the right to cumulate their votes for the election of directors and elections need not be by written ballot unless required by the Bylaws or applicable law.

3.7  Protective Provisions.  As long as any of the Series A Preferred Stock shall be issued and outstanding, the Company shall not, without first obtaining the approval (by vote or written consent as provided by law) of the holders of 65% of the then outstanding shares of the Series A Preferred Stock:

(a)   authorize, create or issue, or obligate itself to authorize, create or issue, any other equity security (by reclassification or otherwise), including any other security convertible into or exercisable for any equity security having a preference over, or on parity with, the Series A Preferred Stock with respect to voting, dividends or upon liquidation;

(b)   amend or repeal or add any provision to its Certificate of Incorporation or Bylaws, if such action would (i) adversely affect the preferences, rights, privileges, or powers of, or restrictions provided for the benefit of the Series A Preferred Stock or (ii) increase or decrease the number of authorized shares of any class of stock or the Series A Preferred;

(c)   increase the number of shares of Common Stock issuable pursuant to the Company’s 1999 Stock Option Plan above 70,558,406;

(d)   increase the number of shares of Common Stock issuable pursuant to the Company’s 2000 Stock Purchase Plan above 10,000,000; or

(e)   amend this Section 3.7.

ARTICLE IV

REGISTERED AGENT AND ADDRESS OF REGISTERED OFFICE

The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.  The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE V

LIMITATION OF LIABILITY AND INDEMNIFICATION

5.1  Limitation of Liability.

To the fullest extent permitted by the Delaware General Corporation Law as the same exists or as it may hereafter be amended, the directors of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director.

5.2  Indemnification of Corporate Agents.

To the fullest extent permitted by applicable law, the Company is authorized to provide indemnification of, and advancement of expenses to, directors, officers, employees, or other agents of the Company and any other person to which the Delaware General Corporation Law permits the Company to provide indemnification.

5.3  Repeal or Modification.

Any repeal or modification of this Article V, by amendment of such article or by operation of law, shall not adversely affect any right or protection of a director, officer, employee or other agent of the Company existing at the time of, or increase the liability of any such person with respect to any acts or omissions in their capacity as a director, officer, employee, or other agent of the Company occurring prior to, such repeal or modification.

 

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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation is hereby executed as of the 15th day of March, 2002.

 

 

	/s/ Patrick M. Byrne
	Patrick Byrne President and Chief Executive Officer

 

 

 

 

Exhibit  3.2A

 

 

 

BYLAWS OF

 

 

D2 DISCOUNTS DIRECT, INC.

 

 

Adopted by Resolution Effective January 1, 1999

 

 

 

 

 

 

TABLE OF CONTENTS

 

ARTICLE 1.  OFFICES
1.1.	Business Offices
1.2.	Registered Office
ARTICLE 2.  SHAREHOLDERS
2.1.	Annual Meeting
2.2.	Special Meetings
2.3.	Place of Meeting
2.4.	Notice of Meeting
2.4.(a)		Content and Mailings Requirements
2.4.(b)		Effective Date
2.4.(c)		Effect of Adjournment
2.5.	Waiver of Notice
2.5.(a)		Written Waiver
2.5.(b)		Attendance at Meetings
2.6.	Record Date
2.6.(a)		Fixing of Record Date
2.6.(b)		Effect of Adjournment
2.7.	Shareholder List
2.8.	Shareholder Quorum and Voting Requirements
2.8.(a)		Quorum
2.8.(b)		Voting Groups
2.8.(c)		Shareholder Action
2.9.	Proxies
2.10.	Voting of Shares
2.11.	Meetings by Telecommunications
2.12.	Action Without a Meeting
2.12.(a)			Written Consent
2.12.(b)			Post-Consent Notice
2.12.(c)			Effective Date and Revocation of Consents
2.12.(d)			Unanimous Consent for Election of Directors
ARTICLE 3.  BOARD OF DIRECTORS
3.1.	General Powers
3.2.	Number, Tenure and Qualifications
3.3.	Regular Meetings

 

 

 

 

3.4.	Special Meetings
3.5.	Notice of Special Meetings
3.6.	Quorum and Voting
3.6.(a)		Quorum
3.6.(b)		Voting
3.6.(c)		Presumption of Assent
3.7.	Meetings by Telecommunications
3.8.	Action Without a Meeting
3.9.	Resignation
3.10.	Removal
3.11.	Vacancies
3.12.	Compensation
3.13.	Committees
ARTICLE 4.  OFFICERS
4.1.	Number
4.2.	Appointment and Term of Office
4.3.	Removal
4.4.	Resignation
4.5.	Authority and Duties of Officers
4.5.(a)		President
4.5.(b)		Vice-President
4.5.(c)		Secretary
4.5.(d)		Chief Financial Officer
4.6.	Salaries
ARTICLE 5.  INDEMNIFICATION OF DIRECTORS, OFFICERS,
	AGENTS AND EMPLOYEES
5.1.	Indemnification of Directors and Officers
5.1.(a)		Determination and Authorization
5.1.(b)		Standard of Conduct
5.1.(c)		No Indemnification in Certain Circumstances
5.1.(d)		Indemnification in Derivative Actions Limited
5.2.	Advance of Expenses for Directors and Officers
5.3.	Indemnification of Agents and Employees Who Are Not Directors or Officers
5.4.	Insurance
ARTICLE 6.  STOCK
6.1.	Issuance of Shares
6.2.	Certificates for Shares
6.2.(a)		Content

 

 

 

ii

 

 

 

6.2.(b)		Legend as to Class or Series
6.2.(c)		Shareholder List
6.2.(d)		Transferring Shares
6.3.	Shares Without Certificates
6.4.	Registration of the Transfer of Shares
ARTICLE 7.  MISCELLANEOUS
7.1.	Inspection of Records by Shareholders and Directors
7.2.	Corporate Seal
7.3.	Amendments
7.4.	Fiscal Year

 

 

 

iii

 

 

ARTICLE 1.  OFFICES

 

                1.1.          Business Offices.  The principal office of the corporation shall be located in such location as the board of directors may determine from time to time.  The corporation may have such other offices, either within or without Utah, as the board of directors may designate or as the business of the corporation may require from time to time.

 

                1.2.          Registered Office.  The registered office of the corporation required to be kept by the Utah Revised Business Corporation Act (as it may be amended from time to time, the “Act”) shall be located within the State of Utah and may be, but need not be, identical with the principal office.  The address of the registered office may be changed from time to time.

 

ARTICLE 2.  SHAREHOLDERS

 

                2.1.          Annual Meeting.  The annual meeting of the shareholders shall be held on such date and such time as shall be designated from time to time by the board of directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting.  If the day fixed for the annual meeting shall be a legal holiday, such meeting shall be held on the next succeeding business day.

 

                2.2.          Special Meetings.  Special meetings of the shareholders, for any purpose or purposes described in the meeting notice, may be called by the president or by the board of directors, and shall be called by the president at the written request of the holders of not less than one–tenth of all the votes entitled to be cast on any issue proposed to be considered at the meeting.

 

                2.3.          Place of Meeting.  The board of directors may designate any place, either within or without the State of Utah, as the place of meeting for any annual or any special meeting of the shareholders.  If no designation is made by the  directors, the place of meeting shall be the principal office of the corporation in the State of Utah.

 

                2.4.          Notice of Meeting.

 

                                2.4.(a)     Content and Mailings Requirements.  Written notice stating the date, time and place of each annual or special shareholder meeting shall be delivered no fewer than 10 nor more than 60 days before the date of the meeting, either personally or by mail, by or at the direction of the president, the board of directors, or other persons calling the meeting, to each shareholder of record entitled to vote at such meeting and to any other shareholder entitled by the Act or the articles of incorporation to receive notice of the meeting.  Notice of special shareholder meetings shall include a description of the purpose or purposes for which the meeting is called.

 

                                2.4.(b)     Effective Date.  Written notice shall be deemed to be effective at the earlier of:  (1)

 

 

 

 

when mailed, if addressed to the shareholder’s address shown in the corporation’s current record of shareholders; (2) when received; (3) five days after it is mailed; or (4) on the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee.

 

                                2.4.(c)     Effect of Adjournment.  If any shareholder meeting is adjourned to a different date, time or place, notice need not be given of the new date, time and place, if the new date, time and place is announced at the meeting before adjournment.  But if a new record date for the adjourned meeting is or must be fixed, then notice must be given pursuant to the requirements of this section to those persons who are shareholders as of the new record date.

 

                2.5.          Waiver of Notice.

 

                                2.5.(a)     Written Waiver.  A shareholder may waive any notice required by the Act, the articles of incorporation or the bylaws, by a writing signed by the shareholder entitled to the notice, which is delivered to the corporation (either before or after the date and time stated in the notice) for inclusion in the minutes or filing with the corporate records.

 

                                2.5.(b)     Attendance at Meetings.  A shareholder’s attendance at a meeting:  (1) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting because of lack of notice or effective notice; and (2) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented.

 

                2.6.          Record Date.

 

                                2.6.(a)     Fixing of Record Date.  For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive payment of any distribution, or in order to make a determination of shareholders for any other proper purpose, the board of directors may fix in advance a date as the record date.  Such record date shall not be more than 70 days prior to the date on which the particular action requiring such determination of shareholders is to be taken.  If no record date is so fixed by the board for the determination of shareholders entitled to notice of, or to vote at, a meeting of shareholders, the record date for determination of such shareholders shall be at the close of business on the day before the first notice is delivered to shareholders.  If no record date is fixed by the board for the determination of shareholders entitled to receive a distribution, the record date shall be the date the board authorizes the distribution.  If no record date is fixed by the board for the determination of shareholders entitled to take action without a meeting, the record date shall be the date the first shareholder signs a consent.

 

                                2.6.(b)     Effect of Adjournment.  When a determination of shareholders entitled to vote at

 

 

2

 

 

any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof unless the board of directors fixes a new record date, which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting.

 

                2.7.          Shareholder List.  After fixing a record date for a shareholders’ meeting, the corporation shall prepare a list of the names of its shareholders entitled to be given notice of the meeting.  The list must be arranged by voting group and within each voting group by class or series of shares, must be alphabetical within each class or series, and must show the address of, and the number of shares held by, each shareholder.  The shareholder list must be available for inspection by any shareholder, beginning on the earlier of ten days before the meeting for which the list was prepared or two business days after notice of the meeting is given for which the list was prepared and continuing through the meeting and any adjournment thereof.  The list shall be available at the corporation’s principal office or at a place identified in the meeting notice in the city where the meeting will be held.

 

                2.8.          Shareholder Quorum and Voting Requirements.

 

                                2.8.(a)     Quorum.  At any meeting of shareholders, a majority of the issued and outstanding shares of the corporation entitled to vote, represented in person or in proxy, shall constitute a quorum.  Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter.  Unless the articles of incorporation or the Act provide otherwise, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on that matter.  Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that  meeting unless a new record date is or must be set for that adjourned meeting.

 

                                2.8.(b)     Voting Groups.  If the articles of incorporation or the Act provide for voting by a single voting group on a matter, action on that matter is taken when voted upon by that voting group.  If the articles of incorporation or the Act provide for voting by two or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately.  Action may be taken by one voting group on a matter even though no action is taken by another voting group entitled to vote on the matter.

 

                                2.8.(c)     Shareholder Action.  If a quorum exists, action on a matter, other than the election of directors, by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the articles of incorporation or the Act require a greater number of affirmative votes.  Directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present.

 

                2.9.          Proxies.  At all meetings of shareholders, a shareholder may vote in person or by proxy which is executed in writing by the shareholder or which is executed by his or her duly authorized attorney–in–fact.  Such proxy shall be filed with the secretary of the corporation or other person authorized

 

 

3

 

 

to tabulate votes before or at the time of the meeting.  No proxy shall be valid after 11 months from the date of its execution unless otherwise provided in the proxy.

 

                2.10.        Voting of Shares.  Unless otherwise provided in the articles of incorporation or by applicable law, each outstanding share, regardless of class, is entitled to one vote upon each matter submitted to a vote at a meeting of shareholders.  Except as provided by specific court order, no shares of the corporation owned, directly or indirectly, by a second corporation, domestic or foreign, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time for purposes of any meeting if a majority of the shares entitled to vote for the election of directors of such second corporation are held by the corporation.  The prior sentence shall not limit the power of the corporation to vote any shares, including its own shares, held by it in a fiduciary capacity.

 

                2.11.        Meetings by Telecommunications.  Any or all shareholders may participate in an annual or special meeting by, or conduct the meeting through the use of, any means of communication by which all shareholders participating may hear each other during the meeting.  A shareholder participating in a meeting by this means is deemed to be present in person at the meeting.

 

                2.12.        Action Without a Meeting.

 

                                2.12.(a)   Written Consent.  Except for the election of directors, any action which may be taken at a meeting of the shareholders may be taken without a meeting and without prior notice if one or more consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shareholders entitled to vote with respect to the subject matter thereof were present and voted.  Action taken under this section has the same effect as action taken at a meeting of shareholders and may be described as such in any document.

 

                                2.12.(b)   Post-Consent Notice.  Unless the written consents of all shareholders entitled to vote have been obtained, notice of any shareholder approval without a meeting shall be given at least ten days before the consummation of the action authorized by such approval to (i) those shareholders entitled to vote who have not consented in writing, and (ii) those shareholders not entitled to vote and to whom the Act requires that notice of the proposed action be given.  Any such notice must contain or be accompanied by the same material that is required under the Act to be sent in a notice of meeting at which the proposed action would have been submitted to the shareholders for action.

 

                                2.12.(c)   Effective Date and Revocation of Consents.  No action taken pursuant to this section shall be effective unless all written consents on which the corporation relies for the taking of an action are received by the corporation within a 60-day period and not revoked.  Such action is effective as of the date the last written consent necessary to effect the action is received, unless all of the written consents specify a later date as the effective date of the action.  If the corporation has received written consents signed by all shareholders entitled to vote with respect to the action, the effective date of the action

 

 

4

 

 

may be any date that is specified in all the written consents as the effective date of the action.  Any such writing may be received by the corporation by electronically transmitted facsimile or other form of communication providing the corporation with a complete copy thereof, including a copy of the signatures thereto.  Any shareholder giving a written consent pursuant to this section may revoke the consent by a signed writing describing the action and stating that the consent is revoked, provided that such writing is received by the corporation prior to the effective date of the action.

 

                                2.12.(d)   Unanimous Consent for Election of Directors.  Notwithstanding subsection (a) of this section, directors may not be elected by written consent unless such consent is unanimous by all shares entitled to vote for the election of directors.

 

ARTICLE 3.  BOARD OF DIRECTORS

 

                3.1.          General Powers.  All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, the board of directors.

 

                3.2.          Number, Tenure and Qualifications.  The authorized number of directors shall be not less than three nor more than nine; provided, however, if the number of shareholders shall be less than three, the number of directors may equal the number of shareholders.  The current number of directors shall be within the limits specified above, as determined (or as amended from time-to-time) by resolution adopted by either the shareholders or the directors.  Each director shall hold office until the next annual meeting of shareholders or until the director’s earlier death, resignation or removal.  However, if a director’s term expires, the director shall continue to serve until his or her successor shall have been elected and qualified, or until there is a decrease in the number of directors.  Directors do not need to be residents of Utah or shareholders of the corporation.

 

                3.3.          Regular Meetings.  A regular meeting of the board of directors shall be held without other notice than this bylaw immediately after, and at the same place as, the annual meeting of shareholders, for the purpose of appointing officers and transacting such other business as may come before the meeting.  The board of directors may provide, by resolution, the time and place for the holding of additional regular meetings without other notice than such resolution.

 

                3.4.          Special Meetings.  Special meetings of the board of directors may be called by or at the request of either the president, the chairman of the board of directors, or any two directors acting together.  The person(s) authorized to call special meetings of the board of directors may fix any place as the place for holding any special meeting of the board of directors.

 

                3.5.          Notice of Special Meetings.  Notice of the date, time and place of any special director meeting shall be given at least two days previously thereto either orally or in writing.  Oral notice shall be effective when communicated in a comprehensive manner.  Written notice is effective as to each director at the earlier of: (a) when received; (b) five days after deposited in the United States mail, addressed to the

 

 

5

 

 

director’s address shown in the records of the corporation; or (c) the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the director.  Any director may waive notice of any meeting before or after the date and time of the meeting stated in the notice.  Except as provided in the next sentence, the waiver must be in writing and signed by the director entitled to the notice.  A director’s attendance at or participation in a meeting shall constitute a waiver of notice of such meeting, unless the director at the beginning of the meeting, or promptly upon his arrival, objects to holding the meeting or transacting business at the meeting because of lack of or defective notice, and does not thereafter vote for or assent to  action taken at the meeting.  Unless required by the articles of incorporation, neither the business to be transacted at, nor the purpose of, any special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting.

 

                3.6.          Quorum and Voting.

 

                                3.6.(a)     Quorum.  A majority of the number of directors prescribed by resolution adopted pursuant to section 3.2 of these bylaws, or if no number is prescribed, the number in office immediately before the meeting begins, shall constitute a quorum for the transaction of business at any meeting of the board of directors, unless the articles of incorporation require a greater number.

 

                                3.6.(b)     Voting.  The act of the majority of the directors present at a meeting at which a quorum is present when the vote is taken shall be the act of the board of directors unless the articles of incorporation require a greater percentage.

 

                                3.6.(c)     Presumption of Assent.  A director who is present at a meeting of the board of directors or a committee of the board of directors when corporate action is taken is deemed to have assented to the action taken unless: (1) the director objects at the beginning of the meeting, or promptly upon his or her arrival, to holding or transacting business at the meeting and does not thereafter vote for or assent to any action taken at the meeting; (2) the director contemporaneously requests that his or her dissent or abstention as to any specific action be entered in the minutes of the meeting; or (3) the director causes written notice of his or her dissent or abstention as to any specific action be received by the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting.  The right of dissent or abstention is not available to a director who votes in favor of the action taken.

 

                3.7.          Meetings by Telecommunications.  Any or all directors may participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may hear each other during the meeting.  A director participating in a meeting by this means is deemed to be present in person at the meeting.

 

                3.8.          Action Without a Meeting.  Any action required or permitted to be taken by the board of directors at a meeting may be taken without a meeting if all the directors consent to such action in writing.  Action taken by written consent is effective when the last director signs the consent, unless, prior to such

 

 

6

 

 

time, any director has revoked a consent by a signed writing received by the corporation, or unless the consent specifies a different effective date.  A signed consent has the effect of an action taken at a meeting of directors and may be described as such in any document.

 

                3.9.          Resignation.  A director may resign at any time by giving a written notice of resignation to the corporation.  Such a resignation is effective when the notice is received by the corporation unless the notice specifies a later effective date, and the acceptance of such resignation shall not be necessary to make it effective.

 

                3.10.        Removal.  The shareholders may remove one or more directors at a meeting called for that purpose if notice has been given that a purpose of the meeting is such removal.  The removal may be with or without cause unless the articles of incorporation provide that directors may only be removed with cause.  If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove that director.  A director may be removed only if the number of votes cast to remove him or her exceeds the number of votes cast not to remove him or her.

 

                3.11.        Vacancies.  Unless the articles of incorporation provide otherwise, if a vacancy occurs on the board of directors, including a vacancy resulting from an increase in the number of directors, the shareholders or the board of directors may fill the vacancy.  During such time If the directors remaining in office constitute fewer than a quorum of the board, they may fill the vacancy by the affirmative vote of a majority of all the directors remaining in office.  If the vacant office was held by a director elected by a voting group of shareholders:  (1) if one or more directors are elected by the same voting group, only such directors are entitled to vote to fill the vacancy if it is filled by the directors; and (2) only the holders of shares of that voting group are entitled to vote to fill the vacancy if it is filled by the shareholders.  A vacancy that will occur at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.

 

                3.12.        Compensation.  By resolution of the board of directors, each director may be paid his or her expenses, if any, of attendance at each meeting of the board of directors and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the board of directors or both.  No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor.

 

                3.13.        Committees.  The board of directors may create one or more committees and appoint members of the board of directors to serve on them.  Each committee must have two or more members, who serve at the pleasure of the board of directors.  Those sections of this Article 3 which govern meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements of the board of directors, apply to committees and their members.

 

7

 

 

ARTICLE 4.  OFFICERS

 

                4.1.          Number.  The officers of the corporation shall be a president, a secretary and a chief financial officer, each of whom shall be appointed by the board of directors.  Such other officers and assistant officers as may be deemed necessary, including any vice-presidents, may also be appointed by the board of directors.  If specifically authorized by the board of directors, an officer may appoint one or more officers or assistant officers.  The same individual may simultaneously hold more than one office in the corporation.

 

                4.2.          Appointment and Term of Office.  The officers of the corporation shall be appointed by the board of directors for a term as determined by the board of directors.  The designation of a specified term does not grant to the officer any contract rights, and the board can remove the officer at any time prior to the termination of such term.  If no term is specified, the officer shall hold office until he or she resigns, dies or until he or she is removed in the manner provided in section 4.3 of these bylaws.

 

                4.3.          Removal.  Any officer or agent may be removed by the board of directors at any time, with or without cause.  Such removal shall be without prejudice to the contract rights, if any, of the person so removed.  Appointment of an officer or agent shall not of itself create contract rights.

 

                4.4.          Resignation.  Any officer may resign at any time, subject to any rights or obligation under any existing contracts between the officer and the corporation, by giving notice to the president or board of directors.  An officer’s resignation shall be effective when received by the corporation, unless the notice specifies a later effective date, and the acceptance of such resignation shall not be necessary to make it effective.

 

                4.5.          Authority and Duties of Officers.  The officers of the corporation shall have the authority and shall exercise the powers and perform the duties specified below and as may be additionally specified by the board of directors or these bylaws, except that in each event each officer shall exercise such powers and perform such duties as may be required by law:

 

                                4.5.(a)     President.  The president shall be the chief executive officer of the corporation and, subject to the control of the board of directors, shall in general supervise and control all of the business and affairs of the corporation.  Unless there is a chairman of the board, the president shall, when present, preside at all meetings of the shareholders and of the board of directors.  The president may sign, with the secretary or any  other proper officer of the corporation thereunto authorized by the board of directors, certificates for shares of the corporation and deeds, mortgages, bonds, contracts, or other instruments which the board of directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the board of directors or by these bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed.  In general, the president shall perform all duties incident to the office of president and such other duties as may be prescribed by the board of directors from time to time.

 

                                4.5.(b)     Vice-President.  If appointed, the vicepresident (or if there is more than one, each

 

 

8

 

 

vice-president) shall assist the president and shall perform such duties as may be assigned to him or her by the president or by the board of directors.  If appointed, in the absence of the president or in the event of his death, inability or refusal to act, the vice-president (or in the event there is more than one vice-president, the vice-presidents in the order designated at the time of their election, or in the absence of any designation, then in the order of their appointment) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president.  (If there is no vice-president, then the chief financial officer shall perform such duties of the president.)

 

                                4.5.(c)     Secretary.  The secretary shall: (i) keep the minutes of the proceedings of the shareholders, the board of directors and any committees of the board in one or more books provided for that purpose; (ii) see that all notices are duly given in accordance with the provisions of these bylaws or as required by law; (iii) be custodian of the corporate records; (iv) when requested or required, authenticate any records of the corporation; (v) keep a register of the post office address of each shareholder which shall be furnished to the secretary by such shareholder; (vi) sign with the president, or a vice–president, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the board of directors; (vii) have general charge of the stock transfer books of the corporation; and (viii) in general, perform all duties incident to the office of secretary and such other duties as from time to time may be assigned by the president or by the board of directors.  Assistant secretaries, if any, shall have the same duties and powers, subject to the supervision of the secretary.

 

                                4.5.(d)     Chief Financial Officer.  If appointed, the chief financial officer shall: (i) have charge and custody of and be responsible for all funds and securities of the corporation; (ii) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies, or other depositaries as shall be selected by the board of directors; and (iii) in general, perform all of the duties incident to the office of chief financial officer and such other duties as from time to time may be assigned by the  president or by the board of directors.  If required by the board of directors, the chief financial officer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the board of directors shall determine.  Assistant chief financial officers, if any, shall have the same powers and duties, subject to the supervision of the chief financial officer.

 

                4.6.          Salaries.  The salaries of the officers shall be fixed from time to time by the board of directors.

 

ARTICLE 5.  INDEMNIFICATION OF DIRECTORS,

OFFICERS, AGENTS AND EMPLOYEES

 

                5.1.          Indemnification of Directors and Officers.  The corporation shall indemnify any individual made a party to a proceeding because the individual is or was a director or officer of the corporation, against liability incurred in the proceeding, but only if such indemnification is both (i) determined permissible and (ii) authorized, as such are defined in subsection (a) of this section 5.1.  (Such indemnification is further

 

 

9

 

 

subject to the limitation specified in subsection 5.1(c).)

 

                                5.1.(a)     Determination and Authorization.  The corporation shall not indemnify a director or officer under this section unless:

 

                                (1)           a determination has been made in accordance with the procedures set forth in section 16-10a-906(2) of the Act that the director or officer met the standard of conduct set forth in subsection (b) below; and

 

                                (2)           payment has been authorized in accordance with the procedures set forth in section 16-10a-906(4) of the Act based on a conclusion that the expenses are reasonable, the corporation has the financial ability to make the payment, and the financial resources of the corporation should be devoted to this use rather than some other use by the corporation.

 

                                5.1.(b)     Standard of Conduct.  The individual shall demonstrate that:

 

                                (1)           his or her conduct was in good faith; and

 

                                (2)           he or she reasonably believed that his or her conduct was in, or not opposed to, the corporation’s best interests; and

 

                                (3)           in the case of any criminal proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful.

 

                                5.1.(c)     No Indemnification in Certain Circumstances.  The corporation shall not indemnify a director or officer under this Section 5.1 of Article 5:

 

                                                                              (1)           in connection with a proceeding by or in the right of the corporation in which the director or officer was adjudged liable to the corporation; or

 

                                (2)           in connection with any other proceeding charging that the director or officer derived an improper personal benefit, whether or not involving action in his or her official capacity, in which proceeding he or she was adjudged liable on the basis that he or she derived an improper personal benefit.

 

                                5.1.(d)     Indemnification in Derivative Actions Limited.  Indemnification permitted under this section 5.1 in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding.

 

                5.2.          Advance of Expenses for Directors and Officers.  If a determination is made, following the

 

 

10

 

 

procedures of section 16-10a-906(2) of the Act, that the director or officer has met the following requirements and if an authorization of payment is made following the procedures and standards set forth in section 16-10a-906(4) of the Act, then the corporation shall pay for or reimburse the reasonable expenses incurred by a director or officer who is a party to a proceeding in advance of final disposition of the proceeding, if:

 

                                5.2.(a)     the director or officer furnishes the corporation a written affirmation of his or her good faith belief that he or she has met the standard of conduct described in section 5.1;

 

                                5.2.(b)     the director or officer furnishes the corporation a written undertaking, executed personally or on his or her behalf, to repay the advance if it is ultimately determined that he or she did not meet the standard of conduct; and

 

                                5.2.(c)     a determination is made that the facts then known to those making the determination would not preclude indemnification under section 5.1 of these bylaws or Part 9 of the Act.

 

                5.3.          Indemnification of Agents and Employees Who Are Not Directors or Officers.  The board of directors may indemnify and advance expenses to any employee or agent of the corporation who is not a director or officer of the corporation to any extent consistent with public policy, as determined by the general or specific actions of the board of directors.

 

                5.4.          Insurance.  By action of the board of directors, notwithstanding any interest of the directors in such action, the corporation may purchase and maintain liability insurance on behalf of a person who is or was a director, officer, employee, fiduciary or agent of the corporation, against any liability asserted against or incurred by such person in that capacity or arising from such person’s status as a director, officer, employee, fiduciary or agent, whether or not the corporation would have the power to indemnify such person under the applicable provisions of the Act.

 

ARTICLE 6.  STOCK

 

                6.1.          Issuance of Shares.  The corporation may issue the number of shares of each class or series of capital stock authorized by the articles of incorporation.  The issuance or sale by the corporation of any shares of its authorized capital stock of any class shall be made only upon authorization by the board of directors, unless otherwise provided by statute.  The board of directors may authorize the issuance of shares for consideration consisting of any tangible or intangible property or benefit to the corporation, including cash, promissory notes, services performed, contracts or arrangements for services to be performed (if such contracts are in writing), or other securities of the corporation.  Shares shall be issued for such consideration as shall be fixed from time to time by the board of directors.

 

 

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                6.2.          Certificates for Shares.

 

                                6.2.(a)     Content.  Shares may but need not be represented by certificates in such form as determined by the board of directors and stating on their face, at a minimum, the name of the corporation and that it is formed under the laws of the State of Utah, the name of the person to whom issued, and the number and class of shares and the designation of the series, if any, the certificate represents.  Such certificates shall be signed (either manually or by facsimile) by any two officers of the corporation and may be sealed with a corporate seal or a facsimile thereof.  If the certificates are signed by facsimile, such certificates must be countersigned by a transfer agent or registered by a registrar, other than the corporation itself or an employee of the corporation.  Each certificate for shares shall be consecutively numbered or otherwise identified.

 

                                6.2.(b)     Legend as to Class or Series.  If the corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences and limitations applicable to each class and the variations in rights, preferences and limitations determined for each series (and the authority of the board of directors to determine variations for future series) must be summarized on  the front or back of each certificate.  Alternatively, each certificate may state conspicuously on its front or back that the  corporation will furnish the shareholder this information on request in writing and without charge.

 

                                6.2.(c)     Shareholder List.  The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation.

 

                                6.2.(d)     Transferring Shares.  All certificates surrendered to the corporation for transfer shall be canceled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed, or mutilated certificate, a new one may be issued therefor upon such terms and indemnity to the corporation as the board of directors may prescribe.

 

                6.3.          Shares Without Certificates.  The board of directors may authorize the issuance of some or all of the shares of any or all of its classes or series without certificates.  Within a reasonable time after the issuance or transfer of shares without certificates, the corporation shall send the shareholder a written statement of the information required on certificates under section 6.2 of these bylaws.

 

                6.4.          Registration of the Transfer of Shares.  Registration of the transfer of shares of the corporation shall be made only on the stock transfer books of the corporation.  In order to register a transfer, the record owner shall surrender the shares to the corporation for cancellation, properly endorsed by the appropriate person or persons with reasonable assurances that the endorsements are genuine and effective.  Unless the corporation has established a procedure by which a beneficial owner of shares held by a nominee is to be recognized by the corporation as the owner, the person in whose name shares stand in the books of the corporation shall be deemed by the corporation to be the owner thereof for all purposes.

 

 

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ARTICLE 7.  MISCELLANEOUS

 

                7.1.          Inspection of Records by Shareholders and Directors.  A shareholder or director of a corporation is entitled to inspect and copy, during regular business hours at the corporation’s principal office, any of the records of the corporation required to be maintained by the corporation under the Act, if such person gives the corporation written notice of the demand at least five business days before the date on which such a person wishes to inspect and copy.  The scope of such inspection right shall be as provided under the Act.

 

                7.2.          Corporate Seal.  The board of directors may provide a corporate seal which may be circular in form and have inscribed thereon any designation including the name of the corporation, the state of incorporation, and the words “Corporate Seal.”

 

                7.3.          Amendments.  The corporation’s board of directors may amend or repeal the corporation’s bylaws at any time unless:

 

                                7.3.(a)     the articles of incorporation or the Act reserve this power exclusively to the shareholders in whole or part; or

 

                                7.3.(b)     the shareholders, in adopting, amending or repealing a particular bylaw, provide expressly that the board of directors may not amend or repeal that bylaw; or

 

                                7.3.(c)     the bylaw either establishes, amends or deletes a greater shareholder quorum or voting requirement.

 

                Any amendment which changes the voting or quorum requirement for the board must meet the same quorum requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirements then in effect or proposed to be adopted, whichever are greater.

 

                7.4.          Fiscal Year.  The fiscal year of the corporation shall be established by the board of directors.

 

 

 

[End of Bylaws]

 

13

Exhibit 3.2B

BYLAWS OF

Overstock.com, Inc.

(initially adopted on February 27, 2002)

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

						Page
ARTICLE I - CORPORATE OFFICES
1.1			REGISTERED OFFICE.		1
1.2			OTHER OFFICES.		1
ARTICLE II - MEETINGS OF STOCKHOLDERS
2.1			PLACE OF MEETINGS.		1
2.2			ANNUAL MEETING.		1
2.3			SPECIAL MEETING.		1
2.4			NOTICE OF STOCKHOLDERS’ MEETINGS.		2
2.5			MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.		2
2.6			QUORUM.		2
2.7			ADJOURNED MEETING; NOTICE.		2
2.8			CONDUCT OF BUSINESS.		3
2.9			VOTING.		3
2.10			STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.		3
2.11			RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS.		3
2.12			PROXIES.		4
2.13			LIST OF STOCKHOLDERS ENTITLED TO VOTE.		4
ARTICLE III - DIRECTORS
3.1			POWERS.		5
3.2			NUMBER OF DIRECTORS.		5
3.3			ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS.		5
3.4			RESIGNATION AND VACANCIES.		5
3.5			PLACE OF MEETINGS; MEETINGS BY TELEPHONE.		6
3.6			REGULAR MEETINGS.		6
3.7			SPECIAL MEETINGS; NOTICE.		6
3.8			QUORUM.		7
3.9			BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.		7
3.10			FEES AND COMPENSATION OF DIRECTORS.		7
3.11			APPROVAL OF LOANS TO OFFICERS.		7
3.12			REMOVAL OF DIRECTORS.		7
ARTICLE IV - COMMITTEES
4.1			COMMITTEES OF DIRECTORS.		8
4.2			COMMITTEE MINUTES.		8
4.3			MEETINGS AND ACTION OF COMMITTEES.		8
ARTICLE V - OFFICERS
5.1			OFFICERS.		9
5.2			APPOINTMENT OF OFFICERS.		9
5.3			SUBORDINATE OFFICERS.		9
5.4			REMOVAL AND RESIGNATION OF OFFICERS.		9

i

TABLE OF CONTENTS
(continued)

			Page
5.5		VACANCIES IN OFFICES.	9
5.6		CHAIRPERSON OF THE BOARD.	10
5.7		CHIEF EXECUTIVE OFFICER.	10
5.8		PRESIDENT.	10
5.9		VICE PRESIDENTS.	10
5.10		SECRETARY.	10
5.11		CHIEF FINANCIAL OFFICER.	11
5.12		ASSISTANT SECRETARY.	11
5.13		ASSISTANT TREASURER.	11
5.14		REPRESENTATION OF SHARES OF OTHER CORPORATIONS.	12
5.15		AUTHORITY AND DUTIES OF OFFICERS.	12
ARTICLE VI - RECORDS AND REPORTS
6.1		MAINTENANCE AND INSPECTION OF RECORDS.	12
6.2		INSPECTION BY DIRECTORS.	12
ARTICLE VII - GENERAL MATTERS
7.1		CHECKS.	13
7.2		EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS.	13
7.3		STOCK CERTIFICATES; PARTLY PAID SHARES.	13
7.4		SPECIAL DESIGNATION ON CERTIFICATES.	13
7.5		LOST CERTIFICATES.	14
7.6		CONSTRUCTION; DEFINITIONS.	14
7.7		DIVIDENDS.	14
7.8		FISCAL YEAR.	14
7.9		SEAL.	14
7.10		TRANSFER OF STOCK.	15
7.11		STOCK TRANSFER AGREEMENTS.	15
7.12		REGISTERED STOCKHOLDERS.	15
7.13		WAIVER OF NOTICE.	15
ARTICLE VIII - NOTICE BY ELECTRONIC TRANSMISSION
8.1		NOTICE BY ELECTRONIC TRANSMISSION.	15
8.2		DEFINITION OF ELECTRONIC TRANSMISSION.	16
8.3		INAPPLICABILITY.	16
ARTICLE IX - AMENDMENTS

 

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BYLAWS OF OVERSTOCK.COM

 

ARTICLE I - CORPORATE OFFICES

1.1       REGISTERED OFFICE.

The registered office of Overstock.com, Inc. shall be fixed in the corporation’s certificate of incorporation, as the same may be amended from time to time.

1.2       OTHER OFFICES.

The corporation’s Board of Directors (the “Board”) may at any time establish other offices at any place or places where the corporation is qualified to do business.

ARTICLE II - MEETINGS OF STOCKHOLDERS

2.1       PLACE OF MEETINGS.

Meetings of stockholders shall be held at any place, within or outside the State of Delaware, designated by the Board.  The Board may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2) of the Delaware General Corporation Law (the “DGCL”).  In the absence of any such designation or determination, stockholders’ meetings shall be held at the corporation’s principal executive office.

2.2       ANNUAL MEETING.

The annual meeting of stockholders shall be held each year.  The Board shall designate the date and time of the annual meeting.  In the absence of such designation the annual meeting of stockholders shall be held on the second Tuesday of May of each year at 10:00 a.m.  However, if such day falls on a legal holiday, then the meeting shall be held at the same time and place on the next succeeding business day.  At the annual meeting, directors shall be elected and any other proper business may be transacted.

2.3       SPECIAL MEETING.

A special meeting of the stockholders may be called at any time by the Board, chairperson of the Board, chief executive officer or president (in the absence of a chief executive officer) or by one or more stockholders holding shares in the aggregate entitled to cast not less than 10% of the votes at that meeting.

If any person(s) other than the Board calls a special meeting, the request shall:

(i)            be in writing;

(ii)           specify the time of such meeting and the general nature of the business proposed to be transacted; and

 

 

(iii)          be delivered personally or sent by registered mail or by facsimile transmission to the chairperson of the Board, the chief executive officer, the president (in the absence of a chief executive officer) or the secretary of the corporation.

The officer(s) receiving the request shall cause notice to be promptly given to the stockholders entitled to vote  at such meeting, in accordance with the provisions of Sections 0 and 0 of these bylaws, that a meeting will be held at the time requested by the person or persons calling the meeting.  No business may be transacted at such special meeting other than the business specified in such notice to stockholders.  Nothing contained in this paragraph of this Section 0 shall be construed as limiting, fixing, or affecting the time when a meeting of stockholders called by action of the Board may be held.

2.4       NOTICE OF STOCKHOLDERS’ MEETINGS.

All notices of meetings of stockholders shall be sent or otherwise given in accordance with either Section 0 or Section 0 of these bylaws not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting.  The notice shall specify the place, if any, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called.

2.5       MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.

Notice of any meeting of stockholders shall be given:

(i)            if mailed, when deposited in the United States mail, postage prepaid, directed to the stockholder at his or her address as it appears on the corporation’s records; or

(ii)           if electronically transmitted as provided in Section 0 of these bylaws.

An affidavit of the secretary or an assistant secretary of the corporation or of the transfer agent or any other agent of the corporation that the notice has been given by mail or by a form of electronic transmission, as applicable, shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

2.6       QUORUM.

The holders of a majority of the stock issued and outstanding and entitled to vote, present in person or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of the stockholders.  If, however, such quorum is not present or represented at any meeting of the stockholders, then either (i) the chairperson of the meeting, or (ii) the stockholders entitled to vote at the meeting, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented.  At such adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as originally noticed.

2.7       ADJOURNED MEETING; NOTICE.

When a meeting is adjourned to another time or place, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time, place if any thereof, and the means of remote communications if any by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned

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meeting are announced at the meeting at which the adjournment is taken.  At the continuation of the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting.  If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

2.8       CONDUCT OF BUSINESS.

The chairperson of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of business.

2.9       VOTING.

The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 0 of these bylaws, subject to Section 217 (relating to voting rights of fiduciaries, pledgors and joint owners of stock) and Section 218 (relating to voting trusts and other voting agreements) of the DGCL.

Except as may be otherwise provided in the certificate of incorporation or these bylaws, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder.

2.10     STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.

Unless otherwise provided in the certificate of incorporation, any action required by the DGCL to be taken at any annual or special meeting of stockholders of a corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.

Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation as provided in Section 228 of the DGCL.  In the event that the action which is consented to is such as would have required the filing of a certificate under any provision of the DGCL, if such action had been voted on by stockholders at a meeting thereof, the certificate filed under such provision shall state, in lieu of any statement required by such provision concerning any vote of stockholders, that written consent has been given in accordance with Section 228 of the DGCL.

2.11     RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS.

In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which record date shall

 

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not precede the date on which the resolution fixing the record date is adopted and which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other such action.

If the Board does not so fix a record date:

(i)            The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.

(ii)           The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board is necessary, shall be the day on which the first written consent is expressed.

(iii)          The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

2.12     PROXIES.

Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.  The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL.

2.13     LIST OF STOCKHOLDERS ENTITLED TO VOTE.

The officer who has charge of the stock ledger of the corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.  The corporation shall not be required to include electronic mail addresses or other electronic contact information on such list.  Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least 10 days prior to the meeting:  (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the corporation’s principal executive office.  In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation.  If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.  If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.  Such list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.

 

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ARTICLE III - DIRECTORS

3.1       POWERS.

Subject to the provisions of the DGCL and any limitations in the certificate of incorporation or these bylaws relating to action required to be approved by the stockholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board.

3.2       NUMBER OF DIRECTORS.

The authorized number of directors shall be determined from time to time by resolution of the Board, provided the Board shall consist of at least one member.  No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.

3.3       ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS.

Except as provided in Section 0 of these bylaws, directors shall be elected at each annual meeting of stockholders to hold office until the next annual meeting.  Directors need not be stockholders unless so required by the certificate of incorporation or these bylaws.  The certificate of incorporation or these bylaws may prescribe other qualifications for directors.  Each director, including a director elected to fill a vacancy, shall hold office until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal.

All elections of directors shall be by written ballot, unless otherwise provided in the certificate of incorporation; if authorized by the Board, such requirement of a written ballot shall be satisfied by a ballot submitted by electronic transmission, provided that any such electronic transmission must be either set forth or be submitted with information from which it can be determined that the electronic transmission authorized by the stockholder or proxy holder.

3.4       RESIGNATION AND VACANCIES.

Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation.  When one or more directors so resigns and the resignation is effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in this section in the filling of other vacancies.

Unless otherwise provided in the certificate of incorporation or these bylaws:

(i)            Vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.

(ii)           Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the provisions of the certificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected.

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If at any time, by reason of death or resignation or other cause, the corporation should have no directors in office, then any officer or any stockholder or an executor, administrator, trustee or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person or estate of a stockholder, may call a special meeting of stockholders in accordance with the provisions of the certificate of incorporation or these bylaws, or may apply to the Court of Chancery for a decree summarily ordering an election as provided in Section 211 of the DGCL.

If, at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority of the whole Board (as constituted immediately prior to any such increase), then the Court of Chancery may, upon application of any stockholder or stockholders holding at least 10% of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office as aforesaid, which election shall be governed by the provisions of Section 211 of the DGCL as far as applicable.

3.5       PLACE OF MEETINGS; MEETINGS BY TELEPHONE.

The Board may hold meetings, both regular and special, either within or outside the State of Delaware.

Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the Board, or any committee designated by the Board, may participate in a meeting of the Board, or any committee, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

3.6       REGULAR MEETINGS.

Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board.

3.7       SPECIAL MEETINGS; NOTICE.

Special meetings of the Board for any purpose or purposes may be called at any time by the chairperson of the Board, the chief executive officer, the president, the secretary or any two directors.

Notice of the time and place of special meetings shall be:

(i)            delivered personally by hand, by courier or by telephone;

(ii)           sent by United States first-class mail, postage prepaid;

(iii)          sent by facsimile; or

(iv)          sent by electronic mail,

directed to each director at that director’s address, telephone number, facsimile number or electronic mail address, as the case may be, as shown on the corporation’s records.

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If the notice is (i) delivered personally by hand, by courier or by telephone, (ii) sent by facsimile or (iii) sent by electronic mail, it shall be delivered or sent at least 24 hours before the time of the holding of the meeting.  If the notice is sent by United States mail, it shall be deposited in the United States mail at least four days before the time of the holding of the meeting.  Any oral notice may be communicated to the director.  The notice need not specify the place of the meeting (if the meeting is to be held at the corporation’s principal executive office) nor the purpose of the meeting.

3.8       QUORUM.

At all meetings of the Board, a majority of the authorized number of directors shall constitute a quorum for the transaction of business.  The vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board, except as may be otherwise specifically provided by statute, the certificate of incorporation or these bylaws.  If a quorum is not present at any meeting of the Board, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.

A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that meeting.

3.9       BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.

Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee.  Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

3.10     FEES AND COMPENSATION OF DIRECTORS.

Unless otherwise restricted by the certificate of incorporation or these bylaws, the Board shall have the authority to fix the compensation of directors.

3.11     APPROVAL OF LOANS TO OFFICERS.

The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the Board, such loan, guaranty or assistance may reasonably be expected to benefit the corporation.  The loan, guaranty or other assistance may be with or without interest and may be unsecured, or secured in such manner as the Board shall approve, including, without limitation, a pledge of shares of stock of the corporation.

3.12     REMOVAL OF DIRECTORS.

Unless otherwise restricted by statute, the certificate of incorporation or these bylaws, any director or the entire Board may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors.

 

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No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of such director’s term of office.

ARTICLE IV - COMMITTEES

4.1       COMMITTEES OF DIRECTORS.

The Board may designate one or more committees, each committee to consist of one or more of the directors of the corporation.  The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.  In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.  Any such committee, to the extent provided in the resolution of the Board or in these bylaws, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the corporation,

4.2       COMMITTEE MINUTES.

Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

4.3       MEETINGS AND ACTION OF COMMITTEES.

Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of:

(i)            Section 0 (place of meetings and meetings by telephone);

(ii)           Section 0 (regular meetings);

(iii)          Section 0 (special meetings and notice);

(iv)          Section 0 (quorum);

(v)           Section 0 (waiver of notice); and

(vi)          Section 0 (action without a meeting)

with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the Board and its members.   However:

(i)            the time of regular meetings of committees may be determined either by resolution of the Board or by resolution of the committee;

 

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(ii)                                  special meetings of committees may also be called by resolution of the Board; and

(iii)          notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee.  The Board may adopt rules for the government of any committee not inconsistent with the provisions of these bylaws.

ARTICLE V - OFFICERS

5.1       OFFICERS.

The officers of the corporation shall be a president and a secretary.  The corporation may also have, at the discretion of the Board, a chairperson of the Board, a vice chairperson of the Board, a chief executive officer, a chief financial officer or treasurer, one or more vice presidents, one or more assistant vice presidents, one or more assistant treasurers, one or more assistant secretaries, and any such other officers as may be appointed in accordance with the provisions of these bylaws.  Any number of offices may be held by the same person.

5.2       APPOINTMENT OF OFFICERS.

The Board shall appoint the officers of the corporation, except such officers as may be appointed in accordance with the provisions of Sections 0 and 0 of these bylaws, subject to the rights, if any, of an officer under any contract of employment.

5.3       SUBORDINATE OFFICERS.

The Board may appoint, or empower the chief executive officer or, in the absence of a chief executive officer, the president, to appoint, such other officers and agents as the business of the corporation may require.  Each of such officers and agents shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the Board may from time to time determine.

5.4       REMOVAL AND RESIGNATION OF OFFICERS.

Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by an affirmative vote of the majority of the Board at any regular or special meeting of the Board or, except in the case of an officer chosen by the Board, by any officer upon whom such power of removal may be conferred by the Board.

Any officer may resign at any time by giving written notice to the corporation.  Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice.  Unless otherwise specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.

5.5       VACANCIES IN OFFICES.

Any vacancy occurring in any office of the corporation shall be filled by the Board or as provided in Section 5.2.

 

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5.6       CHAIRPERSON OF THE BOARD.

The chairperson of the Board, if such an officer be elected, shall, if present, preside at meetings of the Board and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board or as may be prescribed by these bylaws.  If there is no chief executive officer or president, then the chairperson of the Board shall also be the chief executive officer of the corporation and shall have the powers and duties prescribed in Section 5.7 of these bylaws.

5.7       CHIEF EXECUTIVE OFFICER.

Subject to such supervisory powers, if any, as the Board may give to the chairperson of the Board, the chief executive officer, if any, shall, subject to the control of the Board, have general supervision, direction, and control of the business and affairs of the corporation and shall report directly to the Board.  All other officers, officials, employees and agents shall report directly or indirectly to the chief executive officer.  The chief executive officer shall see that all orders and resolutions of the Board are carried into effect.  The chief executive officer shall serve as chairperson of and preside at all meetings of the stockholders.  In the absence of a chairperson of the Board, the chief executive officer shall preside at all meetings of the Board.

5.8       PRESIDENT.

In the absence or disability of the chief executive officer, the president shall perform all the duties of the chief executive officer.  When acting as the chief executive officer, the president shall have all the powers of, and be subject to all the restrictions upon, the chief executive officer.  The president shall have such other powers and perform such other duties as from time to time may be prescribed for him by the Board, these bylaws, the chief executive officer or the chairperson of the Board.

5.9       VICE PRESIDENTS.

In the absence or disability of the president, the vice presidents, if any, in order of their rank as fixed by the Board or, if not ranked, a vice president designated by the Board, shall perform all the duties of the president.  When acting as the president, the appropriate vice president shall have all the powers of, and be subject to all the restrictions upon, the president.  The vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board, these bylaws, the chairperson of the Board, the chief executive officer or, in the absence of a chief executive officer, the president.

5.10     SECRETARY.

The secretary shall keep or cause to be kept, at the principal executive office of the corporation or such other place as the Board may direct, a book of minutes of all meetings and actions of directors, committees of directors, and stockholders.  The minutes shall show

(i)            the time and place of each meeting;

(ii)           whether regular or special (and, if special, how authorized and the notice given);

(iii)          the names of those present at directors’ meetings or committee meetings;

(iv)          the number of shares present or represented at stockholders’ meetings;

 

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(v)           and the proceedings thereof.

The secretary shall keep, or cause to be kept, at the principal executive office of the corporation or at the office of the corporation’s transfer agent or registrar, as determined by resolution of the Board, a share register, or a duplicate share register showing;

(i)                                     the names of all stockholders and their addresses;

(ii)                                  the number and classes of shares held by each;

(iii)                               the number and date of certificates evidencing such shares; and

(iv)                              the number and date of cancellation of every certificate surrendered for cancellation.

The secretary shall give, or cause to be given, notice of all meetings of the stockholders and of the Board required to be given by law or by these bylaws.  The secretary shall keep the seal of the corporation, if one be adopted, in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board or by these bylaws.

5.11     CHIEF FINANCIAL OFFICER.

The chief financial officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital retained earnings, and shares. The books of account shall at all reasonable times be open to inspection by any director.

The chief financial officer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as the Board may designate. The chief financial officer shall disburse the funds of the corporation as may be ordered by the Board, shall render to the chief executive officer or, in the absence of a chief executive officer, the president and directors, whenever they request it, an account of all his or her transactions as chief financial officer and of the financial condition of the corporation, and shall have other powers and perform such other duties as may be prescribed by the Board or these bylaws.

The chief financial officer shall be the treasurer of the corporation.

5.12     ASSISTANT SECRETARY.

The assistant secretary, or, if there is more than one, the assistant secretaries in the order determined by the stockholders or Board (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of the secretary’s inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as may be prescribed by the Board or these bylaws.

5.13     ASSISTANT TREASURER.

The assistant treasurer, or, if there is more than one, the assistant treasurers, in the order determined by the stockholders or Board (or if there be no such determination, then in the order of their election), shall, in the absence of the chief financial officer or in the event of the chief financial officer’s inability or refusal to act,

 

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perform the duties and exercise the powers of the chief financial officer and shall perform such other duties and have such other powers as may be prescribed by the Board or these bylaws.

5.14     REPRESENTATION OF SHARES OF OTHER CORPORATIONS.

The chairperson of the Board, the president, any vice president, the treasurer, the secretary or assistant secretary of this corporation, or any other person authorized by the Board or the president or a vice president, is authorized to vote, represent, and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation.  The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.

5.15     AUTHORITY AND DUTIES OF OFFICERS.

In addition to the foregoing authority and duties, all officers of the corporation shall respectively have such authority and perform such duties in the management of the business of the corporation as may be designated from time to time by the Board or the stockholders.

ARTICLE VI - RECORDS AND REPORTS

6.1       MAINTENANCE AND INSPECTION OF RECORDS.

The corporation shall, either at its principal executive office or at such place or places as designated by the Board, keep a record of its stockholders listing their names and addresses and the number and class of shares held by each stockholder, a copy of these bylaws as amended to date, accounting books, and other records.

Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records and to make copies or extracts therefrom.  A proper purpose shall mean a purpose reasonably related to such person’s interest as a stockholder.  In every instance where an attorney or other agent is the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing that authorizes the attorney or other agent so to act on behalf of the stockholder.  The demand under oath shall be directed to the corporation at its registered office in Delaware or at its principal executive office.

6.2       INSPECTION BY DIRECTORS.

Any director shall have the right to examine the corporation’s stock ledger, a list of its stockholders, and its other books and records for a purpose reasonably related to his or her position as a director.  The Court of Chancery is hereby vested with the exclusive jurisdiction to determine whether a director is entitled to the inspection sought.  The Court may summarily order the corporation to permit the director to inspect any and all books and records, the stock ledger, and the stock list and to make copies or extracts therefrom.  The Court may, in its discretion, prescribe any limitations or conditions with reference to the inspection, or award such other and further relief as the Court may deem just and proper.

 

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ARTICLE VII - GENERAL MATTERS

7.1       CHECKS.

From time to time, the Board shall determine by resolution which person or persons may sign or endorse all checks, drafts, other orders for payment of money, notes or other evidences of indebtedness that are issued in the name of or payable to the corporation, and only the persons so authorized shall sign or endorse those instruments.

7.2       EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS.

The Board, except as otherwise provided in these bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the corporation; such authority may be general or confined to specific instances.  Unless so authorized or ratified by the Board or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.

7.3       STOCK CERTIFICATES; PARTLY PAID SHARES.

The shares of the corporation shall be represented by certificates, provided that the Board may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares.  Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation.  Notwithstanding the adoption of such a resolution by the Board, every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be entitled to have a certificate signed by, or in the name of the corporation by the chairperson or vice-chairperson of the Board, or the president or vice-president, and by the treasureror an assistant treasurer, or the secretary or an assistant secretary of such corporation representing the number of shares registered in certificate form.  Any or all of the signatures on the certificate may be a facsimile.  In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.

The corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor.  Upon the face or back of each stock certificate issued to represent any such partly paid shares, upon the books and records of the corporation in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated.  Upon the declaration of any dividend on fully paid shares, the corporation shall declare a dividend upon partly paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.

7.4       SPECIAL DESIGNATION ON CERTIFICATES.

If the corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate that the corporation shall issue to represent such class or series of stock; provided, however, that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that the corporation shall issue

 

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to represent such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

7.5       LOST CERTIFICATES.

Except as provided in this Section 7.5, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the corporation and cancelled at the same time.  The corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.

7.6       CONSTRUCTION; DEFINITIONS.

Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the DGCL shall govern the construction of these bylaws.  Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both a corporation and a natural person.

7.7       DIVIDENDS.

The Board, subject to any restrictions contained in either (i) the DGCL, or (ii) the certificate of incorporation, may declare and pay dividends upon the shares of its capital stock.  Dividends may be paid in cash, in property, or in shares of the corporation’s capital stock.

The Board may set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the corporation, and meeting contingencies.

7.8       FISCAL YEAR.

The fiscal year of the corporation shall be fixed by resolution of the Board and may be changed by the Board.

7.9       SEAL.

The corporation may adopt a corporate seal, which shall be adopted and which may be altered by the Board.  The corporation may use the corporate seal by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

 

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7.10     TRANSFER OF STOCK.

Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate, and record the transaction in its books.

7.11     STOCK TRANSFER AGREEMENTS.

The corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the corporation to restrict the transfer of shares of stock of the corporation of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.

7.12     REGISTERED STOCKHOLDERS.

The corporation:

(i)            shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner;

(ii)           shall be entitled to hold liable for calls and assessments the person registered on its books as the owner of shares; and

(iii)          shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.

7.13     WAIVER OF NOTICE.

Whenever notice is required to be given under any provision of the DGCL, the certificate of incorporation or these bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to notice.  Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.  Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the certificate of incorporation or these bylaws.

ARTICLE VIII - NOTICE BY ELECTRONIC TRANSMISSION

8.1       NOTICE BY ELECTRONIC TRANSMISSION.

Without limiting the manner by which notice otherwise may be given effectively to stockholders pursuant to the DGCL, the certificate of incorporation or these bylaws, any notice to stockholders given by the corporation under any provision of the DGCL, the certificate of incorporation or these bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given.  Any such consent

 

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shall be revocable by the stockholder by written notice to the corporation.  Any such consent shall be deemed revoked if:

(i)            the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent; and

(ii)           such inability becomes known to the secretary or an assistant secretary of the corporation or to the transfer agent, or other person responsible for the giving of notice.

However, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.

Any notice given pursuant to the preceding paragraph shall be deemed given:

(i)                                     if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;

(ii)                                  if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice;

(iii)                               if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and

(iv)                              if by any other form of electronic transmission, when directed to the stockholder.

An affidavit of the secretary or an assistant secretary or of the transfer agent or other agent of the corporation that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

8.2       DEFINITION OF ELECTRONIC TRANSMISSION.

An “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

8.3       INAPPLICABILITY.

Notice by a form of electronic transmission shall not apply to Sections 164, 296, 311, 312 or 324 of the DGCL.

 

ARTICLE IX - AMENDMENTS

These bylaws may be adopted, amended or repealed by the stockholders entitled to vote.  However, the corporation may, in its certificate of incorporation, confer the power to adopt, amend or repeal bylaws upon the directors.  The fact that such power has been so conferred upon the directors shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal bylaws.

 

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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

 

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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

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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

 

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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

 

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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

 

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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

 

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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.

 

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(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

 

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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

 

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(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

 

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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 15^th 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.

 

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(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:

 

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(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

 

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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;

 

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(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;

 

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(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

 

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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

 

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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

 

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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)

 

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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 Rights Agreement]

 

 

 

 

"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 Rights Agreement]

 

 

 

 

"INVESTORS"
Otter Capital LLC
Print Investor's Name
/s/ John M. Pasquesi