STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ('AGREEMENT') is made as of December 23,
1999 between Bill Gross' idealab!, a California corporation ('BUYER'), and
William S. Elkus, an individual residing in California ('SELLER').
RECITALS
Seller desires to sell, and Buyer desires to purchase, 166,911 shares
(together with all contractual rights of Seller in such shares, the 'SHARES') of
common stock, $.0001 par value per share, of GoTo.com, Inc., a Delaware
corporation (the 'COMPANY'), for the consideration and on the terms set forth in
this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. SALE OF SHARES; CLOSING
1.1 SALE OF SHARES
Subject to the terms and conditions of this Agreement, at the Closing,
Seller will sell and transfer the Shares to Buyer, and Buyer will purchase the
Shares from Seller, in exchange for Buyer delivering to Seller $13,352,880 in
cash (the 'PURCHASE CONSIDERATION').
1.2 CLOSING
The purchase and sale provided for in this Agreement will take place
(the 'CLOSING') at the offices of Latham & Watkins, at 633 West Fifth Street,
Los Angeles, California, 90071, at 7:00 a.m. (local time) on the date that is
two business days following the termination of the applicable waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 or any successor
law, and regulations and rules issued pursuant to that Act or any successor law
(the 'HSR ACT'), or at such other time and place as the parties may agree (the
'CLOSING DATE'). Subject to the provisions of Section 7, failure to consummate
the purchase and sale provided for in this Agreement on the date and time and at
the place determined pursuant to this Section 1.2 will not result in the
termination of this Agreement and will not relieve any party of any obligation
under this Agreement.
1.3 CLOSING OBLIGATIONS
At the Closing:
(a) Seller will deliver to Buyer:
(i) the certificates representing the Shares owned by Seller,
duly endorsed (or accompanied by duly executed stock powers) for
transfer to Buyer; and
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(ii) a certificate executed by Seller representing and warranting
to Buyer that each of Seller's representations and warranties in this
Agreement was accurate in all respects as of the date of this
Agreement and is accurate in all respects as of the Closing Date as if
made on the Closing Date.
(b) Buyer will deliver to Seller:
(i) $13,352,880 in cash by wire transfer of immediately available
funds in accordance with Seller's written wiring instructions; and
(ii) a certificate executed by Buyer to the effect that, except
as otherwise stated in such certificate, each of Buyer's
representations and warranties in this Agreement was accurate in all
respects as of the date of this Agreement and is accurate in all
respects as of the Closing Date as if made on the Closing Date.
2. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
2.1 AUTHORITY
Seller has all requisite legal power and authority to execute and
deliver this Agreement and to perform his obligations under this Agreement.
2.2 AUTHORIZATION
Neither the execution, delivery or performance of this Agreement by
Seller nor the consummation or performance of any or all of the transactions
contemplated by this Agreement, including, without limitation, the sale of the
Shares by Seller to Buyer, the performance by Buyer and Seller of their
respective covenants and obligations under this Agreement, and Buyer's
acquisition and ownership of the Shares (the 'CONTEMPLATED TRANSACTIONS'), by
Seller will give any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability Buyer, joint
venture, estate, trust, association, organization, labor union, or other entity
or governmental body ('PERSON') the right to prevent, delay, or otherwise
interfere with any of the Contemplated Transactions pursuant to: (i) any
federal, state, local, municipal, foreign, international, multinational, or
other administrative order, constitution, law, ordinance, principle of common
law, regulation, statute or treaty (except for compliance with the HSR Act)
('LEGAL REQUIREMENT') or any award, decision, injunction, judgment, order,
ruling, subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other governmental body or by any arbitrator ('ORDER')
to which Seller may be subject; or (ii) any contract to which Seller is a party
or by which Seller may be bound. Seller is not and will not be required to
obtain any consent from any Person in connection with the execution, delivery
and performance of this Agreement.
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2.3 COMPLIANCE WITH OTHER INSTRUMENTS
The execution, delivery and performance of and compliance with this
Agreement will not result in the creation of, any mortgage, pledge, lien,
encumbrance or charge upon the Shares.
2.4 OWNERSHIP
Seller is and will be on the Closing Date the record and beneficial
owner and holder of its Shares, free and clear of all charges, claims, community
property interests, conditions, equitable interests, liens, options, pledges,
security interests, rights of first refusal, or restrictions of any kind,
including any restriction on use, voting, transfer, receipt of income, or
exercise of any other attribute of ownership ('ENCUMBRANCES'). No legend or
other reference to any purported Encumbrance appears upon any certificate
representing the Shares. There are no contracts relating to the issuance, sale,
or transfer of the Shares.
2.5 BROKERS OR FINDERS
Seller has not incurred, and will not incur, directly or indirectly,
as a result of any action taken by Seller, any obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commissions
or any other similar payments in connection with this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
3.1 ORGANIZATION AND GOOD STANDING
Buyer is a corporation duly organized, validly existing, and in good
standing under the laws of the State of California. Buyer has requisite
corporate power and authority to own and operate its properties and assets, and
to carry on its business as presently conducted and as proposed to be conducted.
Buyer is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure so to qualify would have a material adverse
effect on its business, assets, financial condition, results of operations or
properties.
3.2 CORPORATE POWER
Buyer has all requisite legal and corporate power and authority to
execute and deliver this Agreement and to perform its obligations under this
Agreement.
3.3 AUTHORIZATION
All corporate action on the part of Buyer, its officers, directors and
shareholders necessary for the authorization, execution, delivery and
performance of the Agreement by Buyer, and the performance of Buyer's
obligations under the Agreement has been taken. The Agreement, when executed and
delivered by Buyer, shall constitute a valid and binding obligation of Buyer,
enforceable in accordance with its terms.
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3.4 COMPLIANCE WITH OTHER INSTRUMENTS
Buyer is not in violation or default of any term of its articles of
incorporation, as amended, or bylaws, as amended, or any term or provision of
any material mortgage, indebtedness, indenture, contract, agreement, instrument,
judgment, order or decree, and to its knowledge is not in violation of any
statute, rule or regulation applicable to Buyer where such violation would have
a material adverse effect on its business, assets, financial condition, results
of operations or properties. The execution, delivery and performance of and
compliance with this Agreement will not result in any violation of, or conflict
with, or constitute, with or without the passage of time and the giving of
notice, a default under, Buyer's articles of incorporation, as amended, or
bylaws, as amended, or any of its agreements nor result in the creation of, any
mortgage, pledge, lien, encumbrance or charge upon any of the properties or
assets of Buyer; and there is no such violation or default which materially and
adversely affects the business of Buyer or any of its properties or assets.
3.5 BROKERS OR FINDERS
Buyer has not incurred, and will not incur, directly or indirectly, as
a result of any action taken by Buyer, any obligation or liability, contingent
or otherwise, for brokerage or finders' fees or agents' commissions or any other
similar payments in connection with this Agreement.
3.6 FIRPTA
Buyer is not, and has not been at any time during the five year period
ending on the date of this Agreement, a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Internal Revenue Code
of 1986, as amended.
4. COVENANTS OF BUYER AND SELLER PRIOR TO CLOSING DATE
4.1 FILING FOR HSR APPROVAL
As promptly as practicable after the date of this Agreement, Buyer
will make all filings, and thereafter make any other required submissions, with
respect to this Agreement, required to be made by Buyer under the HSR Act and
any related governmental request thereunder. Seller shall cooperate with Buyer
in the preparation of such filing and furnish to Buyer any information about
Seller required for Buyer to complete such filings.
4.2 NO NEGOTIATION
Until such time, if any, as this Agreement is terminated pursuant to
Section 7, Seller will not, and will prevent any employee, agent, consultant,
advisor, or other representative of Seller, including legal counsel,
accountants, and financial advisors ('REPRESENTATIVES'), directly or indirectly,
from soliciting, initiating, or encouraging any inquiries or proposals from,
discussing or negotiating with, providing any non-public information to, or
considering the merits of any unsolicited inquiries or proposals from, any
individual, corporation (including any non-profit corporation), general or
limited partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union, or other entity or governmental body
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('PERSON') (other than Buyer) relating to any transaction involving the sale of
the business or assets of the Company, or any of the capital stock of the
Company, or any merger, consolidation, business combination, or similar
transaction involving the Company. Notwithstanding the foregoing, nothing in
this Section 4.2 shall in any way prevent or prohibit Seller from taking any
action to fulfill his fiduciary duties as a director of the Company.
4.3 FURTHER ASSURANCES
(a) Subject to the terms and conditions herein, each of the parties
hereto agrees to use its or his reasonable best efforts to take, or cause
to be taken, all appropriate action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations
to consummate and make effective the transactions contemplated by this
Agreement.
(b) In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, the
proper officers and/or directors of Buyer and Seller shall take all such
necessary action.
5. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Shares and to take the other
actions required to be taken by Buyer at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by Buyer, in whole or in part):
5.1 SELLER'S PERFORMANCE
(a) All of the covenants and obligations that Seller is required to
perform or to comply with pursuant to this Agreement at or prior to the
Closing (considered collectively), and each of these covenants and
obligations (considered individually), must have been duly performed and
complied with in all material respects.
(b) Each document required to be delivered pursuant to Section 1.3
must have been delivered, and each of the other covenants and obligations
in Section 4 must have been performed and complied with in all material
respects.
5.2 NO INJUNCTION
There must not be in effect any Legal Requirement or any injunction or
other Order that (a) prohibits the sale of the Shares by Seller to Buyer, and
(b) has been adopted or issued, or has otherwise become effective, since the
date of this Agreement.
5.3 NO CLAIM REGARDING STOCK OWNERSHIP OR SALE PROCEEDS
There must not have been made or threatened by any Person any claim
asserting that such Person (a) is the holder or the beneficial owner of, or has
the right to acquire or to obtain beneficial ownership of, the Shares or (b) is
entitled to all or any portion of the Purchase Consideration payable to Seller
for the Shares.
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5.4 NO PROHIBITION
Neither the consummation nor the performance of any or all of the
Contemplated Transactions will, directly or indirectly (with or without notice
or lapse of time), materially contravene, or conflict with, or result in a
material violation of, or cause Buyer or any Person affiliated with Buyer to
suffer any material adverse consequence under, (a) any applicable Legal
Requirement or Order, or (b) any Legal Requirement or Order that has been
published, introduced, or otherwise formally proposed by or before any
governmental body.
5.5 HSR ACT
Any applicable waiting period under the HSR Act relating to the
transactions contemplated by this Agreement shall have expired or been
terminated.
6. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
Seller's obligation to sell the Shares and to take the other actions
required to be taken by Seller at the Closing is subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (any of which may
be waived by Seller, in whole or in part):
6.1 BUYER'S PERFORMANCE
(a) All of the covenants and obligations that Buyer is required to
perform or to comply with pursuant to this Agreement at or prior to the
Closing (considered collectively), and each of these covenants and
obligations (considered individually), must have been performed and
complied with in all material respects.
(b) Buyer must have delivered each of the documents required to be
delivered by Buyer pursuant to Section 1.3 and must have transferred the
Purchase Consideration pursuant to Section 1.3(b)(i).
6.2 NO INJUNCTION
There must not be in effect any Legal Requirement or any injunction or
other Order that (a) prohibits the sale of the Shares by Seller to Buyer, and
(b) has been adopted or issued, or has otherwise become effective, since the
date of this Agreement.
6.3 HSR ACT
Any applicable waiting period under the HSR Act relating to the
transactions contemplated by this Agreement shall have expired or been
terminated.
7. TERMINATION
7.1 TERMINATION EVENTS
This Agreement may, by notice given prior to or at the Closing, be
terminated:
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(a) by either Buyer or Seller if a material breach of any provision of
this Agreement has been committed by the other party and such breach has
not been waived;
(b) by Buyer if any of the conditions in Section 5 has not been
satisfied as of the Closing Date or if satisfaction of such a condition is
or becomes impossible (other than through the failure of Buyer to comply
with its obligations under this Agreement) and Buyer has not waived such
condition on or before the Closing Date; or (ii) by Seller, if any of the
conditions in Section 6 has not been satisfied as of the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than
through the failure of Seller to comply with their obligations under this
Agreement) and Seller have not waived such condition on or before the
Closing Date;
(c) by mutual consent of Buyer and Seller; or
(d) by either Buyer or Seller if the Closing has not occurred (other
than through the failure of any party seeking to terminate this Agreement
to comply fully with its or his obligations under this Agreement) on or
before February 28, 2000, or such later date as the parties may agree upon.
7.2 EFFECT OF TERMINATION
Each party's right of termination under Section 7.1 is in addition to
any other rights it or he may have under this Agreement or otherwise, and the
exercise of a right of termination will not be an election of remedies. If this
Agreement is terminated pursuant to Section 7.1, all further obligations of the
parties under this Agreement will terminate, except that the obligations in
Section 8.1 will survive; PROVIDED, HOWEVER, that if this Agreement is
terminated by a party because of the breach of the Agreement by the other party
or because one or more of the conditions to the terminating party's obligations
under this Agreement is not satisfied as a result of the other party's failure
to comply with its or his obligations under this Agreement, the terminating
party's right to pursue all legal remedies will survive such termination
unimpaired.
8. GENERAL PROVISIONS
8.1 EXPENSES
Except as otherwise expressly provided in this Agreement, each party
to this Agreement will bear its or his respective expenses incurred in
connection with the preparation, execution, and performance of this Agreement
and the Contemplated Transactions, including all fees and expenses of agents,
representatives, counsel, and accountants. In the event of termination of this
Agreement, the obligation of each party to pay its or his own expenses will be
subject to any rights of such party arising from a breach of this Agreement by
another party.
8.2 PUBLIC ANNOUNCEMENTS
Any public announcement or similar publicity with respect to this
Agreement or the Contemplated Transactions will be issued, if at all, at such
time and in such manner as Buyer determines. Unless consented to by Buyer in
advance or required by law, prior to the Closing,
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Seller shall keep this Agreement strictly confidential and may not make any
disclosure of this Agreement to any Person.
8.3 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by telecopier
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
Seller:
William S. Elkus
c/o idealab! Capital Partners
130 West Union Street
Pasadena, California 91103
Facsimile No.: (310) 573-6277
with a copy to:
James K. Baer
Strategic Law Partners
333 South Grand Avenue, Suite 3970
Los Angeles, California 90071
Facsimile No.: (213) 213-7301
Buyer:
Bill Gross' idealab!
130 West Union Street
Pasadena, California 91103
Attention: General Counsel
Facsimile No.: (626) 535-2703
with a copy to:
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
Attention: David M. Hernand, Esq.
Facsimile No.: (213) 891-8763
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8.4 JURISDICTION; SERVICE OF PROCESS
Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement may be brought against any of the
parties in the courts of the State of California, and each of the parties
consents to the jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.
8.5 WAIVER
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (a) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement or the documents referred to in this Agreement.
8.6 ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior agreements between the parties
with respect to its subject matter and constitutes (along with the documents
referred to in this Agreement) a complete and exclusive statement of the terms
of the agreement between the parties with respect to its subject matter. This
Agreement may not be amended except by a written agreement executed by the party
to be charged with the amendment.
8.7 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS
No party may assign any of its or his rights under this Agreement
without the prior consent of the other parties, which will not be unreasonably
withheld, except that Buyer may assign any of its rights under this Agreement to
any subsidiary of Buyer. Subject to the preceding sentence, this Agreement will
apply to, be binding in all respects upon, and inure to the benefit of the
successors and permitted assigns of the parties. Nothing expressed or referred
to in this Agreement will be construed to give any Person other than the parties
to this Agreement any legal or equitable right, remedy, or claim under or with
respect to this Agreement or any provision of this Agreement. This Agreement and
all of its provisions and conditions are for the sole and exclusive benefit of
the parties to this Agreement and their successors and assigns.
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8.8 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
8.9 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation. All
references to 'Section' or 'Sections' refer to the corresponding Section or
Sections of this Agreement. All words used in this Agreement will be construed
to be of such gender or number as the circumstances require. Unless otherwise
expressly provided, the word 'including' does not limit the preceding words or
terms.
8.10 GOVERNING LAW
This Agreement will be governed by the laws of the State of California
without regard to conflicts of laws principles.
8.11 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
Buyer: BILL GROSS' IDEALAB!
By: /s/ Bill Gross
--------------------------------
Name: Bill Gross
Title: Chairman of the Board and
President
Seller: WILLIAM S. ELKUS
/s/ William S. Elkus
--------------------------------
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CONSENT OF SPOUSE
I, Leslie Elkus, spouse of William S. Elkus, have read and approve
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the foregoing Agreement. In consideration of granting of the right to my spouse
to receive the Purchase Consideration as set forth in the Agreement, I hereby
appoint my spouse as my attorney-in-fact in respect to the exercise of any
rights under the Agreement and agree to be bound by the provisions of the
Agreement insofar as I may have any rights in said Agreement or any shares
issued pursuant thereto under the community property laws of the State of
California or similar laws relating to marital property in effect in the state
of our residence as of the date of the signing of the foregoing Agreement.
Dated: December 23, 1999
/s/ Leslie Elkus
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(Signature of Spouse)
Stock Purchase Agreement - Bill Gross' idealab! and William S. Elkus
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