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As filed with the Securities and Exchange Commission on November 18, 2004

Registration No. 333-



SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933


OVERSTOCK.COM, INC.
(Exact name of Registrant as specified in its charter)

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

6322 South 3000 East, Suite 100
Salt Lake City, Utah 84121
(801) 947-3100
(Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices)

Jonathan E. Johnson III
Vice President, Corporate Affairs and Legal
Overstock.com, Inc.
6322 South 3000 East, Suite 100
Salt Lake City, Utah 84121
(801) 947-3100
(Name, address, including zip code, and telephone number, including area code, of agent for service)


Copies to:
Thomas W. Adkins
Bracewell & Patterson, L.L.P.
111 Congress, Suite 2300
Austin, Texas 78701
(512) 472-7800


        Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.

        If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.    o

        If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.    o

        If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.    ý    333-113104

        If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.    o

        If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box.    o


CALCULATION OF REGISTRATION FEE


Title of each class of
securities to be registered

  Amount to
be registered

  Proposed maximum
offering price
per unit
(1)

  Proposed maximum
aggregate
offering price

  Amount of
registration fee


Common Stock, $0.0001 par value   180,000 shares   $57.53   $10,355,400   $1,313

(1)
Based on the offering price.




INCORPORATION BY REFERENCE
TO REGISTRATION STATEMENT ON FORM S-3 (REGISTRATION NO. 333-113104)

        Overstock.com, Inc. hereby incorporates by reference into this Registration Statement on Form S-3 in its entirety the Registration Statement on Form S-3 (Registration No. 333-113104), as amended (including the exhibits thereto), declared effective at 3:00 p.m., EST, on March 8, 2004 by the Securities and Exchange Commission.

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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS

ITEM 16. EXHIBITS

        The following exhibits are filed herewith:

Exhibit
Number

  Exhibit Title
5.1   Opinion of Bracewell & Patterson, L.L.P.
23.1   Consent of Pricewaterhouse Coopers LLP.
23.2   Consent of Bracewell & Patterson, L.L.P. (included in Exhibit 5.1).

Rule 111(b) Certification

        In accordance with Rule 111(b) under the Securities Act of 1933, the undersigned registrant hereby certifies that:

        The registrant further undertakes that, if such instructions have been sent after the close of business of such bank or wire transfer service, it will confirm receipt of such instructions by such bank or wire transfer service during regular business hours on the following business day.

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Salt Lake City, State of Utah, on November 17, 2004.


 

 

OVERSTOCK.COM, INC.

 

 

By:

 

/s/  
PATRICK M. BYRNE      
Patrick M. Byrne
President

        Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.

Signature
  Title
  Date

 

 

 

 

 
/s/  PATRICK M. BYRNE      
Patrick M. Byrne
  President and Director (Principal Executive Officer)   November 17, 2004

/s/  
DAVID K. CHIDESTER      
David K. Chidester

 

Vice President, Finance (Principal Financial and Accounting Officer)

 

November 17, 2004

/s/  
JOHN J. BYRNE, JR.      
John J. Byrne, Jr.

 

Director

 

November 17, 2004

/s/  
GORDON S. MACKLIN      
Gordon S. Macklin

 

Director

 

November 17, 2004

/s/  
ALLISON H. ABRAHAM      
Allison H. Abraham

 

Director

 

November 17, 2004

/s/  
JOHN A. FISHER      
John A. Fisher

 

Director

 

November 17, 2004

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EXHIBIT INDEX

        The following exhibits are filed herewith:

Exhibit
Number

  Exhibit Title
5.1   Opinion of Bracewell & Patterson, L.L.P.
23.1   Consent of Pricewaterhouse Coopers LLP.
23.2   Consent of Bracewell & Patterson, L.L.P. (included in Exhibit 5.1).

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PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS
SIGNATURES
EXHIBIT INDEX