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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Nutri System Inc; Overstock.com, Inc.

Date:

2002

Size:

138KB total

Price:

$75

ID:

#1672205

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Execution Version

AGREEMENT AND PLAN OF MERGER

By and Among

Overstock.com, Inc., a Utah corporation

and

Overstock.com Acquisition Subsidiary, Inc.,
a Washington corporation

and

Gear.com, Inc., a Washington corporation

Executed on November 3, 2000

TABLE OF CONTENTS


ARTICLE I DEFINITIONS
1.01		Defined Terms
ARTICLE II THE MERGER
2.01		The Merger
2.02		Certain Effects of the Merger
2.03		Conversion of Securities
2.04		Dissenters Rights
2.05		Rounding Numbers
2.06		No Further Transfers
2.07		Assumption of Outstanding Stock Options
2.08		Closing
2.09		Filing of Articles of Merger
ARTICLE III REPRESENTATIONS AND WARRANTIES OF GEAR.COM
3.01		Organization and Qualification
3.02		Authorizations and Validity of this Agreement
3.03		Binding Obligations
3.04		Capitalization of Gear.com
3.05		No Brokers or Finders
3.06		Agreements
3.07		Litigation
3.08		Indebtedness
3.09		Disclosure
3.10		No Conflicts
3.11		Subsidiaries
3.12		Compliance with Laws and Other Instruments
3.13		Financial Statements
3.14		No Adverse Changes
3.15		Title to Properties
3.16		Inventory
3.17		Compliance with Laws and Other Instruments
3.18		Discoveries
3.19		Copyright
3.20		Related Party Transactions
3.21		Intellectual Property
3.22		Permits
3.23		Restrictions on Business
3.24		Powers of Attorney
3.25		Absence of Certain Commercial Practices
3.26		Condition of Assets
3.27		Tax Matters

3.28	Books and Records
3.29	Representations Not Waived
3.30	Intellectual Property Assignments; Confidentiality Agreements
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF OVERSTOCK.COM
4.01	Organization and Good Standing
4.02	Authorizations and Validity of this Agreement
4.03	Binding Obligations
4.04	Capitalization
4.05	No Brokers or Finders
4.06	Agreements
4.07	Indebtedness
4.08	Overstock.com Common Stock
4.09	No Conflicts
4.10	Litigation
4.11	Financial Statements
4.12	Tax Matters
4.13	Books and Records
4.14	Disclosure
4.15	Subsidiaries
4.16	Employees and Employee Benefit Plans
4.17	No Adverse Changes
4.18	Compliance with Laws and Other Instruments
4.19	Discoveries
4.20	Copyright
4.21	Related Party Transactions
4.22	Intellectual Property
4.23	Permits
4.24	Restrictions on Business
4.25	Powers of Attorney
4.26	Absence of Certain Commercial Practices
4.27	Condition of Assets
4.28	Representations Not Waived
4.29	Intellectual Property Assignments; Confidentiality Agreements
4.30	Title to Properties
4.31	Inventory
4.32	Books and Records
ARTICLE V ITEMS TO BE DELIVERED AT CLOSING BY OVERSTOCK.COM
5.01	Closing Deliveries
ARTICLE VI ITEMS TO BE DELIVERED AT CLOSING BY GEAR.COM
6.01	Closing Deliveries

ARTICLE VII CONDITIONS TO OBLIGATIONS TO CLOSING
7.01	Conditions to Obligation of Overstock.com
7.02	Conditions to the Obligations of Gear.com
ARTICLE VIII TERMINATION AND AMENDMENT
8.01	Termination
8.02	Effect of Termination
8.03	Amendment
8.04	Waiver
ARTICLE IX COVENANTS
9.01	General
9.02	Covenants and Continuing Obligations Regarding Charter Documents
9.03	Conduct of Business Pending the Merger
9.04	Conduct of Business Pending the Merger
9.05	Operation of Business
9.06	Operation of Business
9.07	Full Access
9.08	Notices
ARTICLE X MISCELLANEOUS PROVISIONS
10.01	Expenses
10.02	Further Assurances
10.03	Public Announcements