Overstock.com (OSTK)

Explanatory Note

This Form 8-K/A amends the Report on Form 8-K filed by Overstock.com, Inc. on March 24, 2009 to clarify that on March 23, 2009 the Audit Committee selected and engaged Grant Thornton LLP as Overstock.com, Inc.’s independent registered public accounting firm for the fiscal year ending December 31, 2009.

EXPLANATORY NOTE

Overstock.com, Inc. (the “Company”) is amending its Annual Report on Form 10-K (“Form 10-K” or “Original Filing”) for the year ended December 31, 2007 to restate (1) its consolidated financial statements as of December 31, 2007 and 2006 and for the years ended December 31, 2007, 2006 and 2005; (2) its selected financial data as of and for the years ended December 31, 2007, 2006, 2005, 2004 and 2003 and (3) its quarterly results of operations for all quarters in the years ended December 31, 2007 and 2006 to correct errors related to the accounting for customer refunds and credits and the accounting for gift cards issued to customers.  This Amendment to Form 10-K (“Amendment”) amends the Annual Report on Form 10-K for the year ended December 31, 2007, as filed on March 17, 2008.

The Company’s decision to restate the aforementioned financial information was made on October 20, 2008 as a result of management’s identification of errors related to the accounting for customer refunds and credits. Management subsequently determined that a portion of the error previously believed to be related to the accounting for customer refunds and credits was actually related to the accounting for gift cards issued to customers.

As more fully described in Note 3 of the financial statements (see Item 15 of Part IV, “Financial Statements (Restated)” – Note 3 – “Restatement of Financial Statements”) management, including our CEO (principal executive officer) and Senior Vice President, Finance (principal financial officer),  concluded, and the Board of Directors agreed with management’s conclusions that:

The Company’s controls were not designed or operating effectively to ensure all refunds and credits issued to customers and gift cards issued to customers were completely and accurately recorded in the consolidated financial statements. These control failures impacted accounts receivable and deferred revenue in the consolidated balance sheet as well as revenue and returns expense (a component of revenue), in the consolidated statement of operations.  As a result, revenue, net of returns expense, was misstated in the consolidated statement of operations and accounts receivable and deferred revenue were misstated in the consolidated balance sheet as of and for the years ended December 31, 2007, 2006, 2005, and 2004 and the related interim periods.  The amounts of these errors were determined to be material to the consolidated financial statements.

In addition, from the Company’s inception through the third quarter of 2007, the Company had recorded revenue based on product ship date.  As disclosed the Annual Report on Form 10-K for the year ended December 31, 2007, the Company determined that it should not record revenue until product delivery date because risk of loss transfers to the customer upon delivery and acceptance.  In the fourth quarter of 2007, the Company performed a detailed analysis of this error and determined that the impact of this error on any prior annual or interim period was not material and the impact of recording the cumulative effect of the error in the fourth quarter of 2007 was immaterial to the full year.  Therefore, the Company recorded the cumulative effect of the error in the fourth quarter of 2007. As the Company is now restating its previously issued consolidated financial statements to correct accounting errors related to customer refunds and credits and gift cards issued to customers, it has reversed the cumulative effect of the correction of the error in the fourth quarter of 2007 and restated all prior periods to reflect revenue recognition based on the product’s estimated delivery date in its consolidated financial statements for the years ended December 31, 2007, 2006, 2005, 2004 and 2003 (see Item 15 of Part IV, “Financial Statements (Restated)” - Note 3 – “Restatement of Financial Statements”). The Company also recorded other miscellaneous adjustments as part of this restatement that were previously identified but determined to be immaterial.

In addition, the control failures described above constitute a material weakness in the Company’s internal control over financial reporting as of December 31, 2007 (see Item 9A of Part II, “Controls and Procedures (Restated)”).

Except as required to reflect the effects of the restatement for the items above, no additional modifications or updates in this Amendment have been made to the Original Filing on Form 10-K. Information not affected by the restatement remains unchanged and reflects the disclosures made at the time of the Original Filing. This amendment does not describe other events occurring after the original filing, including exhibits, or modify or update those disclosures affected by subsequent events. This Amendment should be read in conjunction with the Company’s filings made with the SEC subsequent to the filing of the Original Filing, as those filings may have been amended, as information in such reports and documents may update or supersede certain information contained in this Amendment. Accordingly, this Amendment only amends and restates Item 1 of Part I, Items 6,7,8, and 9A of Part II, and Item 15 of Part IV of the Original Filing, in each case, solely as a result of, and to reflect, the restatement, and no other information in the Original Filing is amended hereby. Additionally, pursuant to the rules of the SEC, Item 15 of Part IV of the Original Filing has been amended to contain currently dated certifications of the Chief Executive Officer and Senior Vice President, Finance. As required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002, the certifications of our Chief Executive Officer and Senior Vice President, Finance, are attached to this Amendment as Exhibits 31.1, 31.2, 32.1 and 32.2.

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EXPLANATORY NOTE

Overstock.com, Inc. (also referred to as the “Company,” “we,” or “our”) is filing this Amendment No. 1 (the “Amendment No. 1”) to our Form 10-Q for the quarterly period ended March 31, 2007 (the “Form 10-Q”), originally filed with the Securities and Exchange Commission on May 9, 2007, for the purpose of providing currently dated 302 and 906 certifications, as the dates on the 906 certifications were omitted from the original filing.

The information set forth in our financial statements and the footnotes thereto in this Amendment No. 1 has not been modified or updated in any way from the information in our financial statements and the related footnotes included in the Form 10-Q. This Amendment No. 1 speaks as of the original filing date of the Form 10-Q and reflects only the changes to the 302 and 906 certifications mentioned above. No other information included in this Form 10-Q/A, including the information set forth in Part II, has been modified or updated in any way.

EXPLANATORY NOTE

Overstock.com, Inc. (also referred to as the “Company,” “we,” or “our”) is filing this Amendment No. 1 (the “Amendment No. 1”) to our Form 10-Q for the quarterly period ended June 30, 2007 (the “Form 10-Q”), originally filed with the Securities and Exchange Commission on August 9, 2007, for the purpose of providing currently dated 302 and 906 certifications, as the dates on the 906 certifications were omitted from the original filing.

The information set forth in our financial statements and the footnotes thereto in this Amendment No. 1 has not been modified or updated in any way from the information in our financial statements and the related footnotes included in the Form 10-Q. This Amendment No. 1 speaks as of the original filing date of the Form 10-Q and reflects only the changes to the 302 and 906 certifications mentioned above. No other information included in this Form 10-Q/A, including the information set forth in Part II, has been modified or updated in any way.

EXPLANATORY NOTE

Overstock.com, Inc. (also referred to as the “Company,” “we,” or “our”) is filing this Amendment No. 1 (the “Amendment No. 1”) to our Form 10-Q for the quarterly period ended September 30, 2007 (the “Form 10-Q”), originally filed with the Securities and Exchange Commission on November 7, 2007, for the purpose of providing currently dated 302 and 906 certifications, as the dates on the 906 certifications were omitted from the original filing.

The information set forth in our financial statements and the footnotes thereto in this Amendment No. 1 has not been modified or updated in any way from the information in our financial statements and the related footnotes included in the Form 10-Q. This Amendment No. 1 speaks as of the original filing date of the Form 10-Q and reflects only the changes to the 302 and 906 certifications mentioned above. No other information included in this Form 10-Q/A, including the information set forth in Part II, has been modified or updated in any way.

EXPLANATORY NOTE

Overstock.com, Inc. (also referred to as the “Company, ” “We,” or “our”) is filing this Amendment No. 1 (the “Amendment No. 1”) to our Form 10-K for the fiscal year ended December 31, 2006 (the “Form 10-K”), originally filed with the Securities and Exchange Commission on March 14, 2007, for the purpose of providing currently dated 302 and 906 certifications, as the dates on the 906 certifications were omitted from the original filing.

The information set forth in our financial statements and the footnotes thereto in this Amendment No. 1 has not been modified or updated in any way from the information in our financial statements and the related footnotes included in the Form 10-K. This Amendment No. 1 speaks as of the original filing date of the Form 10-K and reflects only the changes to the 302 and 906 certifications mentioned above. No other information included in this form 10-K/A, including the information set forth in Part 1, has been modified or updated in any way.

EXPLANATORY NOTE

Overstock.com, Inc. (also referred to as the “Company, ” “We,” or
“our”) is filing this Amendment No. 1 (the “Amendment No. 1”) to our Form 10-K
for the fiscal year ended December 31, 2006 (the “Form 10-K”), originally filed
with the Securities and Exchange Commission on March 14, 2007, for the purpose
of providing currently dated 302 and 906 certifications, as the dates on the
906 certifications were omitted from the original filing.

The information set forth in our financial statements and the footnotes
thereto in this Amendment No. 1 has not been modified or updated in any way
from the information in our financial statements and the related footnotes
included in the Form 10-K. This Amendment No. 1 speaks as of the original
filing date of the Form 10-K and reflects only the changes to the 302 and 906 certifications
mentioned above. No other information included in this form 10-K/A, including
the information set forth in Part 1, has been modified or updated in any way.

Explanatory Note

This Form 8-K/A is being filed solely to correct a typographical error in the Form 8-K filed on November 7, 2006, which contained a reference to the Company’s financial results for the three and nine months ended November 30, 2006. The date should have been September 30, 2006. No other change is made in this amendment.

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EXPLANATORY NOTE

Overstock.com, Inc. (the “Company”) is filing this Amendment No. 1 on Form 10-Q/A (this “Amendment”) to its Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2006, which was originally filed on August 4, 2006 (the “Original Filing”) to set forth the complete text, as amended, of the cover page of the Original Filing. This Amendment corrects the cover page presentation of the number of shares outstanding of the Company’s common stock as of August 2, 2006. The Original Filing inadvertently presented the number of issued shares (including treasury shares) of the Company’s common stock, rather than presenting its outstanding shares. This Amendment does not modify anything in the Original Filing except as described above.

Pursuant to Rule 12b-15 under the Securities Exchange Act of 1934, as amended, this Amendment corrects the cover page of the Original Filing and contains new certifications pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. This Amendment contains only the sections and exhibits to the Original Filing that are being amended, and unaffected parts or exhibits are not included herein. This Amendment continues to speak as of the date of the Original Filing, and the Company has not updated the disclosure contained herein to reflect events that have occurred since the date of the Original Filing. Accordingly, this Amendment should be read in conjunction with the Company’s other filings, if any, made with the United States Securities and Exchange Commission subsequent to the filing of the Original Filing, including the amendments to those filings, if any.

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