{"id":43940,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/stockholder-agreement-idealab-and-goto-com-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stockholder-agreement-idealab-and-goto-com-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/stockholder-agreement-idealab-and-goto-com-inc.html","title":{"rendered":"Stockholder Agreement &#8211; idealab! and GoTo.com Inc."},"content":{"rendered":"<pre>\n\n                                 GOTO.COM, INC.\n\n                         IDEALAB! STOCKHOLDER AGREEMENT\n\n     This Stockholder Agreement (this 'Agreement') is made as of March 3, 2000\nby and between Bill Gross' idealab!, a California corporation ('BGIL'), and\nGoTo.com, Inc., a Delaware corporation (the 'Company').\n\n     WHEREAS, the Company and BGIL desire to make certain covenants and\nagreements with one another pursuant to this Agreement\n\n     NOW THEREFORE, in consideration of the covenants and promises set forth\nherein, and for other good and valuable consideration, the receipt and\nsufficiency of which is hereby acknowledged, the parties hereby agree as\nfollows:\n\n     Note: certain capitalized terms used herein are defined in Article III\nhereof.\n\n                                    ARTICLE I\n\n                                    COVENANTS\n\n     1.1 BGIL Covenants.\n\n          (a) Until March 3, 2002, BGIL will not, and will cause its Affiliates\nnot to, directly or indirectly, except with the prior written consent of the\nCompany's Board of Directors and, without limitation, a majority of the\nIndependent Directors (as defined in Section 2.3):\n\n               (i) become a Beneficial Owner of 35% or more of the outstanding\nCommon Stock;\n\n               (ii) transfer Beneficial Ownership of any Common Stock of the\nCompany except (A) pursuant to the terms of a merger, consolidation or\nliquidation of, or tender offer or other business combination transaction with\nrespect to, the Company, in each case approved by the Company's Board of\nDirectors and, without limitation, by a majority of the Independent Directors,\n(B) pro rata distributions by ICP of shares of Common Stock currently held by it\nto its limited partners consistent with past practice, or (C) other transfers to\nthird parties, provided that any such third party (together with any of its\nAffiliates and Associates) would not, to BGIL's knowledge after inquiry,\nfollowing the completion of such transfer, Beneficially Own 15% or more of the\noutstanding Common Stock of the Company; or\n\n               (iii) knowingly assist or advise, or knowingly provide or arrange\nfinancing to facilitate, another Person, or group of Persons acting in concert,\nto become the Beneficial Owner of 15% or more of the outstanding Common Stock.\n\n          (b) Until March 3, 2002, BGIL shall use good faith reasonable efforts\nto notify the \n\n\n                                       1\n\n\nCompany of any proposed amendment to BGIL's Schedule 13D at least 2 business\ndays prior to such amendment.\n\n          (c) Anything in this Agreement to the contrary notwithstanding, this\nAgreement shall not prohibit or restrict in any way any of the following: (i)\nactions taken by BGIL's nominees or designees on the Board of Directors of the\nCompany in their capacity as directors, and (ii) the exercise by BGIL and its\nAffiliates and Associates of their voting rights with respect to any shares of\nCommon Stock of the Company or other voting securities of the Company that they\nare permitted to Beneficially Own pursuant to the terms of this Agreement.\n\n     1.2 Company Covenants. Until March 3, 2002, so long as BGIL is the\nBeneficial Owner of at least 20% of the outstanding Common Stock, the Company\nwill not, without the prior written consent of BGIL, adopt a 'shareholder rights\nplan' (commonly referred to as a 'poison pill'); provided, however, that if, in\nthe good faith judgment of the Board of Directors of the Company, after\nconsideration of its fiduciary duties, adoption of such a shareholder rights\nplan would be in the best interests of the shareholders of the Company, the\nCompany may adopt such a shareholder rights plan without the consent of BGIL so\nlong as the percentage thresholds set forth therein are no more restrictive to\nBGIL than the terms of this Agreement. If the Company adopts a shareholder\nrights plan, this Agreement shall terminate and be of no further force or\neffect. The Company hereby represents that, as of the date of this Agreement, it\nhas no intention of currently adopting a 'shareholder rights plan.'\n\n                                   ARTICLE II\n\n                                  MISCELLANEOUS\n\n     2.1 Governing Law. This Agreement shall be governed in all respects by the\ninternal laws of the State of Delaware.\n\n     2.2 Successors and Assigns. This Agreement shall inure to the benefit of,\nand be binding upon, the parties hereto and their respective successors and\nassigns.\n\n     2.3 Entire Agreement; Amendment. This Agreement constitutes the full and\nentire understanding and agreement between the parties with regard to the\nsubject hereof. Except as expressly provided herein, neither this Agreement nor\nany term hereof may be amended, waived, discharged or terminated other than by a\nwritten instrument signed by the party against whom enforcement of any such\namendment, waiver, discharge or termination is sought, including on behalf of\nthe Company, approval by a majority of the members of the Board of Directors\nthat are not, and have not for the then previous twelve (12) months been,\nAffiliates of BGIL or any of its Affiliates or Associates (other than the\nCompany) (such members of the Board of Directors, the 'Independent Directors').\n\n     2.4 Notices, etc. All notices and other communications required or\npermitted hereunder shall be in writing and shall be mailed by registered or\ncertified mail, postage prepaid, or otherwise delivered by facsimile\ntransmission, by hand or by messenger, addressed:\n\n\n                                       2\n\n\n                           (a)      If to BGIL, to:\n\n                                    Bill Gross' idealab!\n                                    130 West Union Street\n                                    Pasadena, California 91103\n                                    Attn:  General Counsel\n                                    (Telephone)  (626) 535-2828\n                                    (Facsimile)  (626) 535-2703\n\nWith a copy to:\n\n                                    Latham &amp; Watkins\n                                    633 West Fifth Street, Suite 4000\n                                    Los Angeles, California 90071-2007\n                                    Attn:  Paul D. Tosetti, Esq.\n                                    (Telephone)  (213) 485-1234\n                                    (Facsimile)  (213) 891-8763\n\n                           (b)      If to the Company, to:\n\n                                    GoTo.com, Inc.\n                                    72 North Pasadena Avenue\n                                    Pasadena, CA 91103\n                                    Attn:  Chief Financial Officer\n                                    (Telephone) (626) 685-6890\n                                    (Facsimile) (626) 685-5601\n\nWith a copy to:\n\n                                    Wilson Sonsini Goodrich &amp; Rosati\n                                    Professional Corporation\n                                    Two Palo Alto Square\n                                    Palo Alto, CA  94306\n                                    Attn:  Martin W. Korman, Esq.\n                                           Michael D. Weisberg, Esq.\n                                    (Telephone) (650) 493-9300\n                                    (Facsimile) (650) 493-6811\n\n     Each such notice or other communication shall for all purposes of this\nAgreement be treated as effective or having been given when delivered if\ndelivered personally, if sent by facsimile, the first business day after the\ndate of confirmation that the facsimile has been successfully transmitted to the\nfacsimile number for the party notified, or, if sent by mail, at the earlier of\nits receipt or 72 hours after the same has been deposited in a regularly\nmaintained receptacle for the deposit of the United States mail, addressed and\nmailed as aforesaid.\n\n\n                                       3\n\n\n     2.5 Delays or Omissions. Except as expressly provided herein, no delay or\nomission to exercise any right, power or remedy accruing to a party under this\nAgreement, shall impair any such right, power or remedy nor shall it be\nconstrued to be a waiver of any such breach or default, or an acquiescence\ntherein, or of or in any similar breach or default thereafter occurring; nor\nshall any waiver of any single breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring.\n\n     2.6 Expenses. The Company and BGIL shall bear their own expenses incurred\nwith respect to this Agreement and the transactions contemplated hereby.\n\n     2.7 Specific Performance. The parties hereto acknowledge and agree that\nirreparable damage would occur in the event any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were\notherwise breached and that such damage would not be compensable in money\ndamages and that it would be extremely difficult or impracticable to measure the\nresultant damages. It is accordingly agreed that any party hereto shall be\nentitled to an injunction or injunctions to prevent breaches of the provisions\nof the Agreement and to enforce specifically the terms and provisions hereof, in\naddition to any other remedy to which it may be entitled at law or equity, and\nsuch party that is sued for breach of this Agreement expressly waives any\ndefense that a remedy in damages would be adequate and expressly waives any\nrequirement in an action for specific performance for the posting of a bond by\nthe party bringing such action.\n\n     2.8 Further Assurances. The parties hereto shall do and perform or cause to\nbe done and performed all such further acts and things and shall execute and\ndeliver all such other agreements, certificates, instruments or documents as any\nother party may reasonably request from time to time in order to carry out the\nintent and purposes of this Agreement and the consummation of the transactions\ncontemplated hereby. Neither the Company nor BGIL shall voluntarily undertake\nany course of action inconsistent with satisfaction of the requirements\napplicable to them set forth in this Agreement and each shall promptly do all\nsuch acts and take all such measures as may be appropriate to enable them to\nperform as early as practicable the obligations herein and therein required to\nbe performed by them.\n\n     2.9 Counterparts. This Agreement may be executed in any number of\ncounterparts, each of which may be executed by fewer than all of the parties,\neach of which shall be enforceable against the parties actually executing such\ncounterparts, and all of which together shall constitute one instrument.\n\n     2.10 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\nif it materially changes the economic impact of this Agreement on any party.\n\n     2.11 Captions. Headings of the various sections of this Agreement have been\ninserted for convenience of reference only and shall not be relied upon in\nconstruing this Agreement. Use of any gender herein to refer to any person shall\nbe deemed to comprehend masculine, feminine, and neuter unless the context\nclearly requires otherwise.\n\n\n\n                                       4\n\n\n\n     2.12 Attorneys' Fees. In any action at law or suit in equity in relation to\nthis Agreement, the prevailing party in such action or suit shall be entitled to\nreceive a reasonable sum for its attorneys' fees and all other reasonable costs\nand expenses incurred in such action or suit.\n\n     2.13 Publicity. The parties hereto shall act in good faith to coordinate\nany public announcements concerning the matters set forth herein.\n\n                                   ARTICLE III\n\n                                   DEFINITIONS\n\n     For the purpose of this Agreement, the following terms shall have the\nmeanings specified with respect thereto below:\n\n     'Affiliate' and 'Associate' shall have the respective meanings set forth in\nRule 12b-2 of the rules and regulations promulgated under the Exchange Act.\n\n     A person or entity (either, a 'Person') shall be deemed the 'Beneficial\nOwner' of and shall be deemed to 'beneficially own' any securities:\n\n          (i) which such Person or any of such Person's Affiliates or Associates\nbeneficially owns, directly or indirectly, for purposes of Section 13(d) of the\nExchange Act and Rule 13d-3 thereunder (or any comparable or successor law or\nregulation);\n\n          (ii) which a Person or any of such Person's Affiliates or Associates\nhas (A) the right to acquire (whether such right is exercisable immediately or\nonly after the passage of time) pursuant to any agreement, arrangement or\nunderstanding (other than customary agreements with and between underwriters and\nselling group members with respect to a bona fide public offering of\nsecurities), or upon the exercise of conversion rights, exchange rights, rights,\nwarrants or options, or otherwise; provided, however, that a Person shall not be\ndeemed to be the Beneficial Owner of, or to beneficially own, (1) securities\ntendered pursuant to a tender or exchange offer made by or on behalf of such\nPerson or any of such Person's Affiliates or Associates until such tendered\nsecurities are accepted for purchase or exchange, or (2) securities which a\nPerson or any of such Person's Affiliates or Associates may be deemed to have\nthe right to acquire pursuant to any merger or other acquisition agreement\nbetween the Company and such Person (or one or more of its Affiliates or\nAssociates) if such agreement has been approved in advance by the Board of\nDirectors of the Company; or (B) the right to vote pursuant to any agreement,\narrangement or understanding; provided, however, that a Person shall not be\ndeemed the Beneficial Owner of, or to beneficially own, any security if the\nagreement, arrangement or understanding to vote such security (1) arises solely\nfrom a revocable proxy or consent given to such Person in response to a public\nproxy or consent solicitation made pursuant to, and in accordance with, the\napplicable rules and regulations of the Exchange Act and (2) is not also then\nreportable on Schedule 13D under the Exchange Act (or any comparable or\nsuccessor report); or\n\n          (iii) which are beneficially owned, directly or indirectly, by any\nother person or entity (or any Affiliate or Associate thereof) with which a\nPerson or any of such Person's Affiliates or Associates has \n\n\n                                       5\n\n\nany agreement, arrangement or understanding, whether or not in writing (other\nthan customary agreements with and between underwriters and selling group\nmembers with respect to a bona fide public offering of securities) for the\npurpose of acquiring, holding, voting or disposing of any securities of the\nCompany.\n\n     'Common Stock' shall mean shares of the Common Stock of the Company.\n\n     'Exchange Act' shall mean the Securities Exchange Act of 1934, as amended.\n\n     'ICP' shall mean any of idealab! Capital Partners I-A, L.P., a Delaware\nlimited partnership, or idealab! Capital Partners I-B, L.P., a Delaware limited\npartnership.\n\n\n\n                                       6\n\n\n\n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of\nthe day and year first above written.\n\n                                       'COMPANY'\n\n                                       GOTO.COM, INC.\n\n\n\n                                       By:\n                                           ------------------------------------\n                                            Name:\n                                            Title:\n\n\n                                       'BGIL'\n\n                                       BILL GROSS' IDEALAB!\n\n\n\n                                       By:\n                                           ------------------------------------\n                                            Name:\n                                            Title:\n\n\n                                       7\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":[9629,9633],"class_list":["post-43940","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-gotocom-inc","corporate_contracts_types-securities","corporate_contracts_types-securities__shareholder"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43940","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=43940"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43940"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43940"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43940"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}