OVERSTOCK.COM, INC (Form: 8-K, Received: 11/08/2017 17:19:50)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

November 8, 2017

Date of Report (date of earliest event reported)

Overstock.com, Inc.

(Exact name of Registrant as specified in its charter)

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

799 West Coliseum Way

Midvale, Utah 84047

(Address of principal executive offices)

(801) 947-3100

(Registrant’s telephone number, including area code)

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

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company o

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o

Item 8.01 Other Events.

On November 8, 2017, Overstock.com, Inc., a Delaware corporation (the “Company”), issued warrants (collectively, the “Warrants”) to purchase up to a combined aggregate of 3,722,188 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), to two purchasers (the “Purchasers”) in privately negotiated transactions, for an aggregate purchase price of $6.6 million.

The Warrants were issued under the Company’s registration statement on Form S-3 (Registration No. 333-203607).

The Purchasers have the right to purchase 2,472,188 shares and 1,250,000 shares, respectively, of Common Stock for a term commencing on November 24, 2017 and ending on January 2, 2018 and February 7, 2018, respectively, in each case at an exercise price of $40.45 per share, subject to adjustment as provided in the respective Warrants.

Item 9.01 Financial Statements and Exhibits

(d) Exhibits.

The following exhibits are filed with this report:

5.1		Opinion of Bracewell LLP

23.1		Consent of Bracewell LLP (included in Exhibit 5.1)

SIGNATURE

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

		OVERSTOCK.COM, INC.

	By:	/s/ E. Glen Nickle
		E. Glen Nickle
		Vice President, Legal, and General Counsel
	Date:	November 8, 2017

Exhibit 5.1

November 8, 2017

Overstock.com, Inc.
799 W. Coliseum Way
Midvale, Utah 84121

Re: Offering of Warrants and Warrant Shares

Ladies and Gentlemen:

We have acted as counsel to Overstock.com, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of a Prospectus Supplement dated November 8, 2017 (the “Prospectus Supplement”), of the Company, filed pursuant to Rule 424(b) promulgated under the Securities Act of 1933, as amended (the “Act”), relating to the issuance by the Company to two purchasers (the “Purchasers”) of warrants (collectively, the “Warrants”) to purchase up to a combined aggregate of 3,722,188 shares of the Company’s Common Stock, $0.0001 par value per share (collectively, the “Warrant Shares”), in each case pursuant to separate Securities Purchase Agreements between the Company and each Purchaser dated as of November 8, 2017 (collectively, the “Purchase Agreements”). The Prospectus Supplement relates to the Registration Statement on Form S-3 previously filed by the Company (Registration No. 333-203607) as amended to date (the “Registration Statement”), which was declared effective on December 9, 2015. The Company is also filing a Current Report on Form 8-K dated November 8, 2017 (the “Form 8-K”) relating to the offering of the Warrants (the “Offering”), which includes this opinion letter as an exhibit. This opinion is being delivered at the request of the Company.

At your request, we have examined the Registration Statement, the base prospectus contained in the Registration Statement (the “Base Prospectus”), the Prospectus Supplement, the Certificate of Incorporation and the Bylaws of the Company, both as currently in effect, resolutions of the Board of Directors of the Company, and such other documents as we have deemed necessary for purposes of rendering the opinions in this letter.

Bracewell LLP

T: +1.512.472.7800 F: +1.800.404.3970
111 Congress Avenue, Suite 2300, Austin, Texas 78701-4061
bracewell.com

AUSTIN CONNECTICUT DALLAS DUBAI HOUSTON LONDON NEW YORK SAN ANTONIO SEATTLE WASHINGTON, DC

We have examined such instruments, documents, certificates and records as we have deemed relevant and necessary for the basis of our opinions hereinafter expressed. In such examination, we have assumed (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to authentic originals of all documents submitted to us as copies; (iii) the truth, accuracy, and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed; and (iv) the legal capacity of all natural persons. As to all facts material to the opinions expressed herein we have relied upon certificates or comparable documents of public officials and on oral or written statements and representations of officers of the Company.

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

1. The Warrants have been duly authorized and, when issued and delivered against payment therefor in accordance with the provisions of the respective Purchase Agreements, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.

2. The Warrant Shares have been duly authorized and, when issued and delivered against payment therefor in accordance with the provisions of the respective Warrants, will be validly issued, fully paid and non-assessable.

Our opinion that the Warrants are valid and binding obligations of the Company is subject to:

(a) applicable bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or other similar laws relating to or affecting the rights of creditors generally; and

(b) general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief and limitation of rights of acceleration, regardless of whether such enforceability is considered in a proceeding in equity or at law.

We express no opinion as to any laws other than the General Corporation Law of the State of Delaware.

We hereby consent to the filing of this opinion as an exhibit to the Form 8-K and to the use of our name under the heading “Validity of the Securities” in the Prospectus Supplement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Bracewell LLP

Bracewell LLP

TWA/irb