This is an email exchange between Patrick Byrne and his brokers. Read it and judge for yourself.

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Patrick,

Today I have been informed by Bob at XXXX, that the 50,000 shares of Ostk originally confirmed to have settled on Dec 5th and in the process of being converted from DTC shares to paper, have in actuality not settled and no shares have been received (emphasis added) by XXXX from SSSS (SSSS is selling broker, XXXX is buying broker). The $1.8mm for the purchase of the shares has been debited from your XXXX account, but XXXX has not distributed any money to SSSS and the funds are being held in a XXXX holding account. I am in contact with Bob on a daily basis and we will continue to push SSSS to deliver the shares.

Please let me know if you have any questions.

Thanks, Ted

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Subject: RE: Ostk purchase

Thanks.

Ted or Samson,

Can you confirm for me:

SSSS was the counterparty to this trade?

When the trade is done, what is the process by which the trade is "confirmed to have settled"?

Please describe this process normally works. No more than 50 words. For example:

The trade: "Ted talks to a broker on the SSSS side and agree on the deal, they each write a ticket with a trade number on it." Or... "Ted does the deal through a computer screen, which tells him that the counterparty was SSSS, and give him a trade number."

The confirmation: "Three days later the DTCC sends an electronic confirmation that 50,000 shares have been debited from SSSS's DTCC account and credited to XXXX'."

Or whatever the truth is. I just made those up, but it is what I imagine. Can you just write for me the correct sentences so i understand?

Patrick

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Patrick,

In answer to your questions below;

Yes we purchased the shares through SSSS.

I will try to explain the process as best I know and keep it short. I enter the trade when it comes in. My back office brokers pick up the trade and then call the "reps"/brokers that move the stock. In this instance they contacted SSSS. The SSSS broker then goes and tries to fill the order by breaking it down and going to the street. His back office accumulates the shares and then lets him know that the trade is now good. He then calls my back office broker to let them know the trade is good. Usually this would be an electronic confirmation. The selling broker then has three days to collect those shares from where ever he got them and deliver them to XXXX. So on the day of the trade or by the next morning we have a confirmation and a detailed report that the shares are good. That report is the same I provided to Sam (Your rep). When the stocks arrive at XXXX the money is then credited to the SSSS account and the transaction is complete.

I hope this helps or is the information that you need.

Ted
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Ted,

I have been thinking.

Doesn't this mean that SSSS sold these without having them?

If they sold it, then have to go out and "accumulate the shares"? That is, it was a short sale?

Was it identified as a short sale during the trade?

Can you buy them in?

Patrick

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Patrick,


It would seem that SSSS did not have the shares when they sold them to us. They are a market mover for overstock.com and so are both placing sells and buys throughout the day. There is no way for us to tell how short they were at what time, I don't think the broker at SSSS even knows the total position of shares when they complete the trade. It never is disclosed as a short sale, all we see is a confirmation that they accepted the trade which means that typically they will deliver the shares in three days. My understanding is that traders and brokerage houses will often on securities borrow the shares if they come up short at the end of the day. Since Overstock is a "hot" stock they are finding it just about impossible to find shares to borrow or buy (emphasis added).

As far as your question about buying them in, yes we could buy them in in this situation. However, if we try I don't know that we will be successful. Talking with my traders they feel that we will run into the same problem, no one seems to have enough of the shares to deliver (emphasis added).

I have talked with SSSS again today and they are at the same position right now.

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Thanks Ted.

I assume you mean "market maker" and not "market mover"? (Freudian slip?)

Can you do me a favor and ask SSSS: "Whom did SSSS buy the short sold stock from?"

Patrick
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Patrick,

I talked with SSSS and they said that as far as where they get the shares they execute the buy for us knowing that typically for stocks they can get the shares with in the three days. With Overstock shares they were not able.

They have, as of the 13th, issued buy ins on all shares owed them and are pursuing those shares to complete our purchase.

Ted