{"id":43914,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/series-b-preferred-stockholders-rights-agreement-goto-com-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"series-b-preferred-stockholders-rights-agreement-goto-com-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/series-b-preferred-stockholders-rights-agreement-goto-com-inc.html","title":{"rendered":"Series B Preferred Stockholders&#8217; Rights Agreement &#8211; GoTo.com Inc."},"content":{"rendered":"<pre>\n                              AMENDED AND RESTATED\n                               SERIES B PREFERRED\n                         STOCKHOLDERS' RIGHTS AGREEMENT\n\n\n        This Series B Preferred Stockholders' Rights Agreement (this\n'AGREEMENT') is made as of May 7, 1998 by and between GoTo.com, Inc., a Delaware\ncorporation (the 'COMPANY') and the entities listed on Exhibit A hereto (each an\n'INVESTOR' and together, the 'INVESTORS').\n\n                                    RECITALS\n\n        A. Certain of the Investors and the Company entered into that certain\nSeries B Preferred Stockholders' Rights Agreement, dated March 26, 1998 (the\n'ORIGINAL RIGHTS AGREEMENT'), in connection with that certain Series B Preferred\nStock Purchase Agreement (the 'ORIGINAL SERIES B\nPURCHASE AGREEMENT') of the same date.\n\n        B. The parties to the Original Series B Purchase Agreement are amending\nsuch agreement on the date hereof to provide for, among other things, a per\nshare purchase price of $0.77 and the addition of certain investors.\n\n        C. In conjunction therewith, the parties to the Original Rights\nAgreement wish to amend and restate such agreement.\n\n        NOW, THEREFORE, In consideration of the mutual promises and covenants\nhereinafter set forth, the parties hereto agree as follows:\n\n        1. Certain Definitions. As used in this Agreement, the following terms\nshall have the following respective meanings:\n\n                'COMMISSION' means the Securities and Exchange Commission or any\n                successor agency.\n\n               'COMMON STOCK' means the Common Stock of the Company.\n\n               'FAMILY MEMBER' has the meaning set forth for it in Section 4.\n\n               'HOLDER' means any holder of outstanding Registrable Securities\n(or Series B Preferred Stock convertible into Registrable Securities, as the\ncase may be) which have not been sold to the public.\n\n               'PARTIES' means the parties that are signatories of this\nAgreement; 'PARTY' shall refer to any one of the Parties.\n\n                'QUALIFIED PUBLIC OFFERING' has the meaning set forth for it in\n                Section 5(a).\n\n                'RESTRICTED SECURITIES' means the securities of the Company\ndescribed in Section 3 hereof.\n\n\n\n\n\n\n\n\n               'REGISTRABLE SECURITIES' means (i) shares of the Common Stock\nissued or issuable upon the conversion of the Series B Preferred Stock; and (ii)\nany other shares of the Company's Common Stock issued as (or issuable upon\nconversion or exercise of any warrant, right or other security which is issued\nas) a dividend or other distribution with respect to or in exchange for or\nreplacement of the Series B Preferred Stock.\n\n        The terms 'register,' 'registered' and 'registration' refer to a\nregistration effected by preparing and filing a registration statement in\ncompliance with the Securities Act, and the declaration or ordering of the\neffectiveness of such registration statement.\n\n               'REGISTRATION EXPENSES' means all reasonable out-of-pocket\nexpenses incurred by the Company in complying with Sections 5 and 8 hereof,\nincluding, without limitation, all registration, qualification and filing fees,\nprinting expenses, escrow fees, fees and disbursements of counsel for the\nCompany, blue sky fees and expenses, and accounting fees of the Company.\n\n               'SECURITIES ACT' means the Securities Act of 1933, as amended.\n\n               'SELLING EXPENSES' means all underwriting discounts, selling\ncommissions and stock transfer taxes applicable to the securities registered by\nthe Holders.\n\n               'SERIES B PREFERRED STOCK' means the Series B Preferred Stock of\n               the Company.\n\n        2. Restrictions on Transferability. The Restricted Securities shall not\nbe transferable except upon the conditions specified in this Agreement\n(including, without limitation, the provisions of Sections 4 and 18), which\nconditions are intended, among other things, to ensure compliance with the\nprovisions of the Securities Act and other provisions. Each holder of Restricted\nSecurities will cause any proposed transferee of the Restricted Securities held\nby such holder to agree in writing to take and hold such Restricted Securities\nin accordance with the restrictions, obligations and conditions specified in\nthis Agreement (including, without limitation, the provisions of Sections 2, 3,\n4, 11, 12 and 18) and to be bound by this Agreement in the same manner as the\ntransferring holder.\n\n        3. Restrictive Legend. Each certificate representing (i) shares of\nSeries B Preferred Stock, (ii) shares of Common Stock issued upon conversion of\nthe Series B Preferred Stock, and (iii) any other securities issued in respect\nof the Series B Preferred Stock and Common Stock issued upon conversion of the\nSeries B Preferred Stock (any such securities listed in the preceding\nsubsections (i), (ii) or (iii), 'RESTRICTED SECURITIES), shall (unless otherwise\npermitted by the provisions of Section 4 below) be stamped or otherwise\nimprinted with a legend in the following form (in addition to any legend\nrequired under applicable state securities laws):\n\n        THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED\n        FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE\n        SECURITIES ACT OF 1933, AS AMENDED (THE 'SECURITIES ACT'). THESE\n\n\n                                       -2-\n\n\n\n\n\n        SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH\n        REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE SECURITIES ACT. COPIES\n        OF THE AGREEMENTS COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING\n        THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE\n        HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION\n        AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.\n\n        4. Notice of Proposed Transfers. The holder of each certificate\nrepresenting Restricted Securities by acceptance thereof agrees to comply in all\nrespects with the provisions of this Section 4. Prior to any proposed transfer\nof any Restricted Securities, unless there is in effect a registration statement\nunder the Securities Act covering the proposed transfer, the holder thereof\nshall give written notice to the Company of such holder's intention to effect\nsuch transfer. Each such notice shall describe the manner and circumstances of\nthe proposed transfer in sufficient detail, and shall, if the Company so\nrequests, be accompanied (except in transactions in compliance with Rule 144) by\nan unqualified written opinion of legal counsel who shall be reasonably\nsatisfactory to the Company, addressed to the Company and reasonably\nsatisfactory in form and substance to the Company's counsel, to the effect that\nthe proposed transfer of the Restricted Securities may be effected without\nregistration under the Securities Act, provided, however, that no opinion need\nbe obtained with respect to a transfer to (A) a partner, active or retired, of a\nholder of Restricted Securities, (B) the estate of any such partner, (C) an\n'affiliate' of a holder of Restricted Securities as that term is defined in Rule\n405 promulgated by the Commission under the Securities Act (an'AFFILIATE'), or\n(D) to the spouse, children, grandchildren or spouse of such children or\ngrandchildren of any holder or to trusts for the benefit of any Holder or such\npersons where the holder is a natural person (each person or entity in this\nsubsection (D), a 'FAMILY MEMBER'), if the transferee agrees to be subject to\nthe terms hereof. Each certificate evidencing the Restricted Securities\ntransferred as above provided shall bear the appropriate restrictive legend set\nforth in Section 3 above, except that such certificate shall not bear such\nrestrictive legend if in the opinion of counsel for the Company such legend is\nnot required in order to establish compliance with any provisions of the\nSecurities Act.\n\n        5.     Company Registration.\n\n               (a) Notice of Registration. After the first firmly underwritten\npublic offering which is (i) pursuant to an effective registration statement\nunder the Securities Act covering the offer and sale of Common Stock and (ii)\nthe anticipated proceeds from such offering equals or exceeds $5,000,000, such\noffering (a 'QUALIFIED PUBLIC OFFERING') if the Company shall determine to\nregister any of its securities, either for its own account or the account of a\nsecurity holder, other than (A) a registration relating to employee benefit\nplans or, (B) a registration relating to a Commission Rule 145 or similar\ntransaction, the Company will:\n\n                   (i) promptly give to each Holder written notice thereof; and\n\n\n                                       -3-\n\n\n\n\n\n                      (ii) include in such registration (and any related\nqualification under blue sky laws or other compliance), and in any underwriting\ninvolved therein, all the Registrable Securities specified in a written request\nor requests, made within thirty (30) days after receipt of such written notice\nfrom the Company, by any Holder, except as set forth in Section 5(b) below.\n\n               (b) Underwriting. If the registration of which the Company gives\nnotice is for a registered public offering involving an underwriting, the\nCompany shall so advise the Holders as a part of the written notice given\npursuant to Section 5(a)(i). In such event the right of any Holder to\nregistration pursuant to Section 5 shall be conditioned upon such Holder's\nparticipation in such underwriting and the inclusion of such Holder's\nRegistrable Securities in the underwriting to the extent provided herein. All\nHolders proposing to distribute their securities through such underwriting shall\n(together with the Company and other holders distributing their securities\nthrough such underwriting) enter into an underwriting agreement in customary\nform with the underwriter or underwriters selected for such underwriting by the\nCompany. Notwithstanding any other provision of this Section 5, if the managing\nunderwriter advises the Company in writing that marketing factors require a\nlimitation of the number of shares to be underwritten, then the managing\nunderwriter may limit to whatever extent necessary (including the complete\nexclusion of all Registrable Securities) the number of Registrable Securities to\nbe included in the registration and underwriting by reducing the number of\nRegistrable Securities included on behalf of the Holders, on a pro-rata basis\nbased on the total number of Registrable Securities entitled to registration\nheld by each Holder. The Company shall advise all Holders of Registrable\nSecurities which would otherwise be registered and underwritten pursuant hereto\nof any such limitations. If any Holder disapproves of the terms of any such\nunderwriting, he may elect to withdraw therefrom by written notice to the\nCompany and the underwriter. Any Registrable Securities excluded or withdrawn\nfrom such underwriting shall not be included in such registration.\n\n        6. Expenses of Registration. All Registration Expenses incurred in\nconnection with any registration, qualification or compliance pursuant to\nSection 5 and Section 8 shall be borne by the Company. All Selling Expenses\nrelating to securities registered by the Holders shall be borne by the Holders\nof such securities pro rata on the basis of the number of shares so registered.\n\n        7. Registration Procedures. In the case of each registration,\nqualification or compliance effected by the Company pursuant to this Agreement,\nthe Company will keep each Holder advised in writing as to the initiation of\neach registration, qualification and compliance and as to the completion\nthereof. At its expense the Company will:\n\n               (a) Effectiveness. Prepare and file with the Commission a\nregistration statement with respect to such securities and use its best efforts\nto cause such registration statement to become and remain effective for at least\nthirty (30) days or until the distribution described in the registration\nstatement has been completed; provided, however, that such thirty (30) day\nperiod shall be extended for a period of time equal to the period the Holder\nrefrains from selling any securities included in such registration at the\nrequest of an underwriter of Common Stock (or other securities) of the Company;\n\n\n                                       -4-\n\n\n\n\n\n               (b) Amendments. Prepare and file with the Commission such\namendments and supplements to such registration statement and the prospectus\nused in connection with such registration statement as may be necessary to\ncomply with the provisions of the Securities Act with respect to the disposition\nof all securities covered by such registration statement;\n\n               (c) Copies of Documents. Furnish to the Holders participating in\nsuch registration and to the underwriters of the securities being registered\nsuch reasonable number of copies of the registration statement, preliminary\nprospectus, final prospectus and such other documents as such underwriters may\nreasonably request in order to facilitate the public offering of such\nsecurities;\n\n               (d) Blue Sky Laws. Use its best efforts to register and qualify\nthe securities covered by such registration statement under such other\nsecurities or blue sky laws of such jurisdictions as shall be reasonably\nrequested by the Holders; provided that the Company shall not be required in\nconnection therewith or as a condition thereto to qualify to do business or to\nfile a general consent to service of process in any such states or\njurisdictions, unless the Company is already subject to service in such\njurisdiction and except as may be required by the Securities Act;\n\n               (e) Underwriting Agreement. In the event of any underwritten\npublic offering, enter into and perform its obligations under an underwriting\nagreement, in usual and customary form, with the managing underwriter of such\noffering; provided that each Holder participating in such underwriting shall\nalso enter into and perform its obligations under such underwriting agreement;\n\n               (f) Notification. Notify each Holder of Registrable Securities\ncovered by such registration statement at any time when a prospectus relating\nthereto is required to be delivered under the Securities Act of the happening of\nany event as a result of which the prospectus included in such registration\nstatement, as then in effect, includes an untrue statement of material fact or\nomits to state a material fact required to be stated therein or necessary to\nmake the statements therein not misleading in the light of the circumstances\nthen existing;\n\n               (g) Listing. Cause such Registrable Securities registered\npursuant hereunder to be listed on each securities exchange on which similar\nsecurities issued by the Company are then listed; and\n\n               (h) Transfer Agent and Registrar. Provide a transfer agent and\nregistrar for all Registrable Securities registered pursuant hereunder and a\nCUSIP number for all such Registrable Securities, in each case not later than\nthe effective date of such registration.\n\n        8. Registration on Form S-3. If the Holders holding at least fifty\npercent (50%) of the total authorized Series B Preferred Stock request in\nwriting that the Company file a registration statement on Form S-3 (or any\nsuccessor form thereto) for a public offering of shares of Registrable\nSecurities the reasonably anticipated aggregate price to the public of which\nwould exceed five hundred thousand dollars ($500,000), and the Company is a\nregistrant entitled to use Form S-3 to register securities for\n\n\n\n                                       -5-\n\n\n\n\n\nsuch an offering, the Company shall use its commercially reasonable efforts to\ncause such shares to be registered for the offering on such form (or any\nsuccessor thereto). Notwithstanding the foregoing, the Company may delay the\nfiling of a registration statement requested pursuant to this Section 8 once in\nany twelve (12) month period for a period of up to ninety (90) days if the\nCompany's Board of Directors determines that such a filing would not be in the\nbest interest of the Company at the time of the request. The Company will\npromptly give written notice of a request for the proposed registration to all\nother Holders and include all Registrable Securities of any Holder or Holders\njoining in such request as are specified in a written request received by the\nCompany within thirty (30) days after the date of such written notice from the\nCompany. The Company shall be required to file no more than two (2) such\nregistration statements on Form S-3 pursuant to this Section 8.\n\n        9. Termination of Registration Rights. Except as provided elsewhere in\nthis Agreement, the registration rights granted pursuant to this Agreement shall\nterminate (i) as to all Holders on the third anniversary of the closing of a\nQualified Public Offering and (ii) as to any Holder, at such time as such Holder\nis able to sell all of its Registrable Securities under Rule 144 in a three (3)\nmonth period or such Holder is able to sell all Registrable Securities held by\nit pursuant to Rule 144(k) promulgated under the Securities Act.\n\n        10.    Indemnification.\n\n               (a) Company Indemnification. The Company will indemnify each\nHolder, each of its officers, directors and partners and such Holder's legal\ncounsel and independent accountants, and each person controlling such Holder\nwithin the meaning of Section 15 of the Securities Act, with respect to which\nregistration, qualification or compliance has been effected pursuant to this\nAgreement, and each underwriter, if any, and each person who controls any\nunderwriter within the meaning of Section 15 of the Securities Act, against all\nexpenses, claims, losses, damages and liabilities (or actions in respect\nthereof), including any of the foregoing incurred in settlement of any\nlitigation, arising out of or based on any untrue statement (or alleged untrue\nstatement) of a material fact contained in any registration statement,\nprospectus, offering circular or other document, or any amendment or supplement\nthereto, incident to any such registration, qualification or compliance, or\nbased on any omission (or alleged omission) to state therein a material fact\nrequired to be stated therein or necessary to make the statements therein, not\nmisleading, or any violation by the Company of any rule or regulation\npromulgated under the Securities Act applicable to the Company and relating to\naction or inaction required of the Company in connection with any such\nregistration, qualification or compliance, and will reimburse each such Holder,\neach of its officers, directors and partners and such Holder's legal counsel and\nindependent accountants, and each person controlling such Holder, each such\nunderwriter and each person who controls any such underwriter, for any legal and\nany other expenses reasonably incurred in connection with investigating,\npreparing or defending any such claim, loss, damage, liability or action,\nprovided that the Company will not be liable in any such case to the extent that\nany such claim, loss, damage, liability or expense arises out of or is based on\nany untrue statement or omission or alleged untrue statement or omission, made\nin reliance upon and in conformity with written information furnished to the\nCompany\n\n\n\n                                       -6-\n\n\n\n\n\nby an instrument duly executed by such Holder or underwriter and stated to be\nspecifically for use therein.\n\n               (b) Holder Indemnification. Each Holder will, if Registrable\nSecurities held by such Holder are included in the securities as to which such\nregistration, qualification or compliance is being effected, indemnify the\nCompany, each of its directors and officers and its legal counsel and\nindependent accountants, each underwriter, if any, of the Company's securities\ncovered by such a registration statement, each person who controls the Company\nor such underwriter within the meaning of Section 15 of the Securities Act, and\neach other such Holder, each of its officers and directors and each person\ncontrolling such Holder within the meaning of Section 15 of the Securities Act,\nagainst all claims, losses, damages and liabilities (or actions in respect\nthereof) arising out of or based on any untrue statement (or alleged untrue\nstatement) of a material fact contained in any such registration statement,\nprospectus, offering circular or other document, or any omission (or alleged\nomission) to state therein a material fact required to be stated therein or\nnecessary to make the statements therein not misleading, and will reimburse the\nCompany, such Holders, such directors, officers, legal counsel, independent\naccountants, underwriters or control persons for any legal or any other expenses\nreasonably incurred in connection with investigating or defending any such\nclaim, loss, damage, liability or action, in each case to the extent, but only\nto the extent, that such untrue statement (or alleged untrue statement) or\nomission (or alleged omission) is made in such registration statement,\nprospectus, offering circular or other document in reliance upon and in\nconformity with written information furnished to the Company by an instrument\nduly executed by such Holder and stated to be specifically for use therein;\nprovided, however, that the obligations of any such Holder hereunder shall be\nlimited to an amount equal to the gross proceeds before expenses and commissions\nto such Holder of Registrable Securities sold as contemplated herein.\n\n               (c) Notification of Claim. Each party entitled to indemnification\nunder this Section 10 (the 'INDEMNIFIED PARTY') shall give notice to the party\nrequired to provide indemnification (the 'INDEMNIFYING PARTY') promptly after\nsuch Indemnified Party has actual knowledge of any claim as to which indemnity\nmay be sought, and shall permit the Indemnifying Party to assume the defense of\nany such claim or any litigation resulting therefrom, provided that counsel for\nthe Indemnifying Party, who shall conduct the defense of such claim or\nlitigation, shall be approved by the Indemnified Party (whose approval shall not\nbe unreasonably withheld), and the Indemnified Party may participate in such\ndefense at such party's expense; provided, however, that the Indemnified Party\n(together with all other Indemnified Parties that may be represented without\nconflict by one counsel) shall have the right to retain one separate counsel,\nwith the fees and expenses to be paid by the Indemnifying Party, if\nrepresentation of such Indemnified Party by the counsel retained by the\nIndemnifying Party would be inappropriate due to actual or potential differing\ninterests between such Indemnified Party and any other party represented by such\ncounsel in such proceeding; and provided further that the failure of any\nIndemnified Party to give notice as provided herein shall not relieve the\nIndemnifying Party of its obligations under this Agreement, except to the\nextent, but only to the extent, that the Indemnifying Party's ability to defend\nagainst such claim or litigation is impaired as a result of such failure to give\nnotice. No Indemnifying Party, in the defense of any such claim or litigation,\nshall, except with the\n\n\n\n                                       -7-\n\n\n\n\n\nconsent of each Indemnified Party, consent to entry of any judgment or enter\ninto any settlement which does not include as an unconditional term thereof the\ngiving by the claimant or plaintiff to such Indemnified Party of a release from\nall liability in respect to such claim or litigation.\n\n               (d) Contribution. If the indemnification provided for in\nparagraphs (a) and (b) of this Section 10 is unavailable or insufficient to hold\nharmless an Indemnified Party thereunder, then each Indemnifying Party\nthereunder shall contribute to the account paid or payable by such Indemnified\nParty as a result of the losses, claims, damages, costs, expenses, liabilities\nor actions referred to in paragraphs (a) and (b) of this Section 10 in such\nproportion as is appropriate to reflect the relative fault of the Indemnifying\nParty on the one hand and the Indemnified Party on the other in connection with\nstatements or omissions which resulted in such losses, claims, damages or\nliabilities, as well as any other relevant equitable considerations. The\nrelative fault shall be determined by reference to, among other things, whether\nthe untrue or alleged untrue statement of a material fact or the omission or\nalleged omission to state a material fact relates to information supplied by the\nIndemnifying Party or the Indemnified Party and the parties' relative intent,\nknowledge, access to information and opportunity to correct or prevent such\nuntrue statements or omission. The parties hereto agree that it would not be\njust and equitable if contributions pursuant to this paragraph (d) of Section 10\nwere to be determined by pro rata or per capita allocation or by any other\nmethod of allocation which does not take account of the equitable considerations\nreferred to in the first sentence of this paragraph (d) of Section 10. The\namount paid by an Indemnified Party as a result of the losses, claims, damages\nor liabilities referred to in the first sentence of this paragraph (d) of\nSection 10 shall be deemed to include any legal or other expenses reasonably\nincurred by such Indemnified Party in connection with investigating or defending\nany action or claim which is the subject of this paragraph (d) of Section 10.\nPromptly after receipt by an Indemnified Party of notice of the commencement of\nany action against such party in respect of which a claim for contribution may\nbe made against an Indemnifying Party under this paragraph (d) of Section 10,\nsuch Indemnified Party shall notify the Indemnifying Party in writing of the\ncommencement thereof if the notice specified in paragraph (c) of this Section 10\nhas not been given with respect to such action; provided that the omission so to\nnotify the Indemnifying Party shall not relieve the Indemnifying Party from any\nliability which it may have to any Indemnified Party otherwise under this\nparagraph (d) of Section 10, except to the extent that the Indemnifying Party is\nactually prejudiced by such failure to give notice. The parties hereto agree\nwith each other and shall agree with the underwriters of the Common Stock of the\nCompany pursuant to the terms hereof, if requested by such underwriters, that\n(a) the underwriters' portion of such contribution shall not exceed the\nunderwriting discount, commission and other compensation and (b) except for the\nCompany, the amount of such contribution shall not exceed an amount equal to the\nproceeds received by such Indemnifying Party from the sale of securities in the\noffering to which the losses, claims, damages or liabilities of the indemnified\nparties relate. No person guilty of fraudulent misrepresentation (within the\nmeaning of Section 11(f) of the Securities Act) shall be entitled to\ncontribution from any person who was not guilty of such fraudulent\nmisrepresentation.\n\n\n\n                                       -8-\n\n\n\n\n\n        11. Lock-up Agreement. In consideration for the Company agreeing to its\nobligations under this Agreement, each Holder of Registrable Securities and each\ntransferee pursuant to Section 14 hereof agrees, in connection with a Qualified\nPublic Offering, upon request of the Company or the underwriters managing such\noffering, not to sell, make any short sale of, loan, grant any option for the\npurchase of, or otherwise dispose of any Registrable Securities or other\nsecurities of the Company (other than those included in the registration)\nwithout the prior written consent of the Company or such underwriters, as the\ncase may be, for such period of time (not to exceed one hundred eighty (180)\ndays) from the effective date of such registration as the Company or the\nunderwriters may specify. Each Holder agrees that the Company may instruct its\ntransfer agent to place stop transfer notations in its records to enforce the\nprovisions of this Section 11.\n\n        12. Information by Holder. The Holder or Holders of Registrable\nSecurities included in any registration shall furnish to the Company such\ninformation regarding such Holder or Holders and the distribution proposed by\nsuch Holder or Holders as the Company may request in writing and as shall be\nrequired in connection with any registration, qualification or compliance\nreferred to in this Agreement.\n\n        13. Rule 144 Reporting. With a view to making available the benefits of\ncertain rules and regulations of the Commission which may at any time permit the\nsale of the Restricted Securities to the public without registration, after such\ntime as a public market exists for the Common Stock of the Company, the Company\nagrees to:\n\n            (a) Public Information. Make and keep public information available,\nas those terms are understood and defined in Rule 144 under the Securities Act,\nat all times after the effective date of the first registration under the\nSecurities Act filed by the Company for an offering of its securities to the\ngeneral public;\n\n            (b) Filings with SEC. Use its best efforts to then file with the\nCommission in a timely manner all reports and other documents required of the\nCompany under the Securities Act and the Securities Exchange Act of 1934, as\namended (at any time after it has become subject to such reporting\nrequirements); and\n\n            (c) Compliance Statement. Furnish to Holders of Registrable\nSecurities forthwith upon request, a written statement by the Company as to its\ncompliance with the reporting requirements of Rule 144 (at any time after ninety\n(90) days after the effective date of the first registration statement filed by\nthe Company for an offering of its securities to the general public), and of the\nSecurities Act and the Securities Exchange Act of 1934, as amended (at any time\nafter it has become subject to such reporting requirements), a copy of the most\nrecent annual or quarterly report of the Company, and such other reports and\ndocuments of the Company as a Holder of Registrable Securities may reasonably\nrequest in availing itself of any rule or regulation of the Commission allowing\nsuch Holder to sell any such securities without registration.\n\n\n\n                                       -9-\n\n\n\n\n\n        14. Information Rights. Upon request, the Company will furnish to any\nParty, after the end of each fiscal year, unaudited, consolidated balance sheets\nof the Company and its subsidiaries, if any, as of the end of such fiscal year,\nand unaudited, consolidated statements of income and unaudited, consolidated\nstatements of cash flows of the Company and its subsidiaries, if any, for such\nyear, each signed by the principal financial or accounting officer of the\nCompany; provided, however, that such Party first executes a confidentiality\nagreement in a form provided by the Company. The information rights set forth in\nthis Section 14 shall expire upon the closing date of a Qualified Public\nOffering.\n\n        15. Transfer of Registration Rights and Information Rights. The right\ngranted hereunder to cause the Company to register securities or to participate\nin a registration of the Company or to receive information of the Company\npursuant to Section 14 may not be assigned to any transferee or assignee of\nRestricted Securities unless such transferee or assignee receives and thereafter\nholds at least two hundred thousand (200,000) shares of Common Stock issued or\nissuable upon conversion of the Series B Preferred Stock.\n\n        16.    Right to Maintain.\n\n               (a) General. Until the closing date of a Qualified Public\nOffering, if the Company desires to issue and sell shares of its capital stock\nor rights, options or other securities exercisable for or convertible into\nshares of its capital stock, then the Company shall first notify each Party of\nthe material terms of such proposed sale (such notice, a 'COMPANY ISSUANCE\nNOTICE'). The Company shall then permit each Party to acquire, at the time of\nthe closing of such sale, such number of the shares of capital stock or other\nsecurities as would enable such Party to maintain its percentage of equity\nownership (calculated on a fully diluted basis, assuming the conversion of all\nseries of the Company's Preferred Stock and exercise of all options and other\nrights to acquire Common Stock) in the Company following such issuance at a\nlevel held by it immediately prior to such issuance. The Parties shall each have\nten (10) days after the delivery of any Company Issuance Notice to elect by\nnotice to the Company to purchase such shares or securities at the time of the\nclosing of such sale.\n\n               (b) Exceptions. The rights set forth in Section 16(a) shall not\napply to the issuance of (i) shares or grant of options (including shares\nissuable upon exercise of such options) under any Company stock purchase and\/or\nstock option plans or arrangements approved by the Company's Board of Directors,\n(ii) shares of Common Stock issued upon conversion of any series of preferred\nstock of the Company, (iii) shares of the Company's capital stock or rights,\noptions or other securities issued pursuant to a stock split of the Common Stock\nor Company declared dividend, (iv) Company securities (including, without\nlimitation, options, warrants and preferred stock) issued in connection with a\nmerger or acquisition or strategic partnering or joint venture agreement, (v)\nCompany securities (including, without limitation, options, warrants and\npreferred stock) issued to banks, lenders, equipment financiers and the like, or\n(vi) shares of Common Stock sold in a Qualified Public Offering.\n\n\n\n                                      -10-\n\n\n\n\n\n        17. Co-Sale Rights. If Bill Gross' idealab! ('IDEALAB!') desires to sell\nany of the Common Stock it holds (such Common Stock, 'FOUNDER'S COMMON STOCK')\nother than Common Stock issued upon conversion of any series of the Company's\npreferred stock (or any distribution thereon) to a purchaser other than any\nHolder (a 'THIRD PARTY'), the Parties shall be provided with the Co-Sale Rights\nset forth in this Section 17 with respect to such sale.\n\n               (a) Rights Granted. Subject to Section 17(c), in the event that\nidealab! proposes to sell any shares of its Founder's Common Stock (a 'FOUNDER\nSALE') to any Third Party, idealab! shall deliver a notice (a 'CO-SALE NOTICE')\nto the other Parties of such Founder Sale. Thereafter, the Parties shall have\nthe right, exercisable upon written notice to idealab! within ten (10) days\nafter delivery of the Co-Sale Notice to participate in the Founder Sale pursuant\nto the terms and conditions set forth in the Co-Sale Notice. The right of the\nParties to participate in any Founder Sale shall be subject to the following\nterms and conditions:\n\n                      (i) Each of the Parties may sell all or any part of that\nnumber of shares of Common Stock held by it up to a maximum equal to the product\nobtained by multiplying (A) the number of shares of Common Stock to be sold in\nthe Founder Sale by (B) a fraction, the numerator of which is the number of\nshares of Common Stock held by such Party (or issuable to such Party upon\nconversion of shares of Series B Preferred Stock) immediately prior to the\nFounder Sale, and the denominator of which is the aggregate number of shares of\nCommon Stock then outstanding (calculated on a fully-diluted basis, assuming the\nconversion of all series of the Company's preferred stock and exercise of all\noptions and other rights to acquire Common Stock).\n\n                      (ii) Each Party participating in the Founder Sale shall\ndeliver to idealab! for transfer to the Third Party one or more certificates,\nproperly endorsed for transfer, which represent the number of shares of Common\nStock that such Party elects to sell pursuant to this Section 17.\n\n                      (iii) The certificates which such Party delivers to\nidealab! pursuant to Section 17(a) shall be transferred to the Third Party\npursuant to the terms and conditions specified in the Co-Sale Notice, and\nidealab! shall no later than five (5) days after the closing of the Founder\nSale, remit to such Party that portion of the sale proceeds to which it is\nentitled by reason of its participation in such sale.\n\n               (b) Termination of Rights. The provisions of this Section 17\nshall terminate on the date immediately prior to the closing date of a Qualified\nPublic Offering.\n\n               (c) Affiliate Transfers. Notwithstanding the foregoing, the\nrights and obligations set forth in this Section 17 shall not apply to transfers\nto affiliates of idealab!.\n\n\n                                      -11-\n\n\n\n\n\n        18. Right of First Refusal. Prior to the closing date of a Qualified\nPublic Offering, before there can be a valid sale or transfer for consideration\nof any Restricted Securities by any holder thereof, such holder shall first\noffer those Restricted Securities to the Company in the following manner:\n\n               (a) Notice. The holder of the Restricted Securities shall deliver\na written notice to the Company stating the price, terms, and conditions of such\nproposed sale or transfer, the number and type of Restricted Securities to be\nsold or transferred, and his intention to so sell or transfer such Restricted\nSecurities. Within thirty (30) days thereafter, the Company shall have the prior\nright to purchase any and all of the Restricted Securities offered at the price\nand upon the terms and conditions stated in such notice (it being understood\nthat the Company may assign this right in its sole discretion).\n\n               (b) Sale. If none or only a part of the Restricted Securities in\nsuch holder's notice is purchased by the Company (or an assignee of the Company)\nwithin a thirty (30) day period from the date of delivery of the notice by such\nholder to the Company, the holder may sell or transfer to any person or persons\nall Restricted Securities referred to in his notice that were not purchased by\nthe company, but only within a period of one hundred twenty (120) days from the\ndate of his first notice; and provided that he shall not sell or transfer such\nRestricted Securities at a lower price or on terms more favorable to the\npurchaser or transferee than those specified in his notice to the company. After\nsaid one hundred and twenty (120) day period, the foregoing procedure for first\noffering the Restricted Securities to the Company shall again apply.\n\n               (c) Restrictions. Any sale or transfer or purported sale or\ntransfer of the Restricted Securities of the Company shall be null and void\nunless the terms, conditions, and provisions of Sections 2, 14 and this Section\n18 are strictly observed and followed.\n\n               (d) Exception. The Parties expressly acknowledge that a\ndistribution of Restricted Securities by any holder thereof to a Family Member\nor any Affiliate which is a partner of such holder shall not be considered a\n'sale or transfer for consideration' which triggers the rights and obligations\ndescribed in this Section 18.\n\n        19. Governing Law. This Agreement and the legal relations between the\nparties arising hereunder shall be governed by and interpreted in accordance\nwith the laws of the State of California. The parties hereto agree to submit to\nthe exclusive jurisdiction and venue of the United States District Court for the\nNorthern District of California with respect to the breach or interpretation of\nthis Agreement or the enforcement of any and all rights, duties, liabilities,\nobligations, powers, and other relations between the parties arising under this\nAgreement.\n\n        20. Entire Agreement. This Agreement constitutes the full and entire\nunderstanding and agreement between the parties regarding rights to\nregistration. Except as otherwise expressly provided herein, the provisions\nhereof shall inure to the benefit of, and be binding upon, the successors,\nassigns, heirs, executors and administrators of the parties hereto.\n\n\n                                      -12-\n\n\n\n\n\n\n        21. Notices, etc. All notices and other communications required or\npermitted hereunder shall be in writing and deemed given on the business day\nfollowing delivery to the recipient in person or by overnight courier service or\nby facsimile (with acknowledgment of transmission), and addressed (a) if to a\nSeries B Preferred Holder, to such holder's address set forth below, or at such\nother address as such holder shall have furnished to the Company in writing, or\nuntil any such holder so furnishes an address to the Company, then to the\naddress of the last holder of such securities who has so furnished an address to\nthe Company, or (b) if to the Company, to its address set forth on the signature\npage of this Agreement, to the attention of the Chief Executive Officer, or at\nsuch other address as the Company shall have furnished to the Holders.\n\n        22. Counterparts. This Agreement may be executed in any number of\ncounterparts, each of which may be executed by less than all of the parties\nhereto, each of which shall be enforceable against the parties actually\nexecuting such counterparts, and all of which together shall constitute one and\nthe same instrument.\n\n        23. Amendment. Any provision of this Agreement may be amended, waived,\nmodified, discharged or terminated only with the written consent of the Company\nand with the written consent of the Party against whom enforcement is sought.\n\n        24. Successors and Assigns. Except as otherwise provided herein, the\nprovisions hereof shall inure to the benefit of, and be binding upon, the\nsuccessors, assigns, heirs, executors and administrators of the parties hereto.\n\n        25. Severability. In the event that any provision of this Agreement\nbecomes or is declared by a court of competent jurisdiction to be illegal,\nunenforceable or void, this Agreement shall continue in full force and effect\nwithout said provision; provided that no such severability shall be effective if\nit materially changes the economic benefit of this Agreement to any party.\n\n\n                                    * * * *\n\n\n\n                                      -13-\n\n\n\n\n\n        IN WITNESS WHEREOF, the undersigned have executed this First Amended and\nRestated Series B Preferred Stockholders' Rights Agreement as of the date set\nforth above.\n\n'COMPANY'                                   'INVESTOR'\n\nGOTO.COM, INC.                              ____________________________________\na Delaware Corporation                      Name of Investor\n\n                                            By:_________________________________\n________________________________________    Title:______________________________\nJeffrey Brewer, Chief Executive Officer     Address:____________________________\n                                                    ____________________________\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n     [Signature pages to Series B Preferred Stockholders' Rights Agreement]\n\n\n\n                                      -14-\n\n\n\n\n                                    EXHIBIT A\n\n                                    INVESTORS\n\n\n\n                                      -15-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7665],"corporate_contracts_industries":[],"corporate_contracts_types":[9630,9629],"class_list":["post-43914","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-gotocom-inc","corporate_contracts_types-securities__invest","corporate_contracts_types-securities"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43914","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43914"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43914"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43914"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43914"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}