<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(AMENDMENT NO. 2)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
GOTO.COM, INC.
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(Name of Issuer)
Common Stock, $0.0001 par value per share
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(Title of Class of Securities)
38348T107
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(CUSIP Number)
Todd Tappin
Chief Financial Officer
GoTo.Com, Inc.
74 North Pasadena Avenue
3rd Floor
Pasadena, California 91103
(626) 685-5600
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 3, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is subject of this Schedule 13D, and is filing this
statement because of Rule 13d-1(b)(3) or (4), check the following box: / /.
(Continued on the following page)
Page 1 of 11 Pages
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SCHEDULE 13D
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CUSIP NO. 38348T107 PAGE 2 OF 11
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- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
WILLIAM GROSS
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
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NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY
OWNED BY EACH 13,369,076 SHARES
REPORTING PERSON --------------------------------------------------------
WITH 8 SHARED VOTING POWER
3,033,684 SHARES
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
13,369,076 SHARES
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,033,684 SHARES
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
16,402,760 SHARES
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
36.0%
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14 TYPE OF REPORTING PERSON
IN
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<PAGE>
SCHEDULE 13D
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CUSIP NO. 38348T107 PAGE 3 OF 11
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- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
BILL GROSS' IDEALAB!
TAX I.D. NO. 95-4569774
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
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NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY
OWNED BY EACH 13,367,331 SHARES
REPORTING PERSON --------------------------------------------------------
WITH 8 SHARED VOTING POWER
3,033,684
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
13,367,331 SHARES
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,033,684
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
16,401,015 SHARES
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
36.0%
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14 TYPE OF REPORTING PERSON
CO
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<PAGE>
SCHEDULE 13D
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CUSIP NO. 38348T107 PAGE 4 OF 11
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1 NAME OF REPORTING PERSON
IDEALAB! HOLDINGS, L.L.C.
TAX I.D. NO. 95-4729649
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY
OWNED BY EACH 13,367,331 SHARES
REPORTING PERSON --------------------------------------------------------
WITH 8 SHARED VOTING POWER
0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
13,367,331 SHARES
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,367,331 SHARES
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29.4%
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14 TYPE OF REPORTING PERSON
OO
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<PAGE>
Page 5 of 11
ITEM 1. SECURITY AND ISSUER.
This Amendment No. 2 to the Statement on Schedule 13D (the
"Amendment No. 2") filed by Bill Gross, Bill Gross' idealab!, a California
corporation ("idealab!"), and idealab! Holdings, L.L.C., a Delaware limited
liability company and a wholly-owned subsidiary of idealab! ("idealab!
Holdings," and together with Bill Gross and idealab!, the "Reporting Persons")
amends and supplements the Statement on Schedule 13D (the "Initial Filing")
filed on January 3, 2000, as amended and supplemented pursuant to Amendment No.
1 filed by the Reporting Persons on January 20, 2000 (collectively with the
Initial Filing, the "Schedule 13D"), relating to the shares of common stock,
$0.0001 par value per share (the "Common Stock"), of GoTo.Com, Inc., a Delaware
corporation (the "Company"). The principal executive offices of the Company are
located at 74 North Pasadena Avenue, 3rd Floor, Pasadena, California 91103.
Except as specifically provided herein, this Amendment No. 2
does not modify any of the information previously reported on the Schedule 13D.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to them in the Schedule 13D.
Item 2. IDENTITY AND BACKGROUD.
(a) This statement is being filed jointly by Bill Gross,
idealab! and idealab! Holdings.
(b) The address of the Reporting Persons' principal office or
residence is 74 North Pasadena Avenue, 3rd Floor , Pasadena, California 91103.
The names, business addresses and principal businesses of each of the directors
and executive officers of each of idealab! and idealab! Holdings are set forth
on SCHEDULE I hereto and incorporated by reference herein.
(c) The principal business of idealab! and idealab! Holdings
is the creation and operation of internet businesses.
(d) During the last five years, none of the Reporting Persons
nor, to the best of their knowledge, any of the executive officers or directors
of any of the Reporting Persons, as applicable, has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
(e) During the last five years, none of the Reporting Persons
nor, to the best of their knowledge, any of the executive officers or directors
of any of the Reporting Persons, as applicable, has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and,
as a result of such proceeding, was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
(f) To the best knowledge of idealab! and idealab! Holdings,
each of their executive officers and directors is a United States citizen. Bill
Gross is a United States citizen.
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Page 6 of 11
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 of the Schedule 13D is hereby amended by adding the
following:
On March 3, 2000, idealab! and the Company entered into a
Stockholder Agreement (the "Stockholder Agreement"). A copy of the Stockholder
Agreement is attached hereto as Exhibit 11 and incorporated by reference herein.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) As of the date hereof, idealab! Capital Partners I-A,
L.P., a Delaware limited partnership ("ICP I-A") is the record owner of
2,262,134 shares of Common Stock, and idealab! Capital Partners I-B, L.P., a
Delaware limited partnership ("ICP I-B") is the record owner of 410,550 shares
of Common Stock. Mr. Gross may be deemed the beneficial owner of the shares
owned by ICP I-A and ICP I-B in his capacity as a Managing Member of idealab!
Capital Management I, L.L.C., a Delaware limited liability company ("ICM") which
is the general partner of ICP I-A and ICP I-B and shares voting and investment
power over shares held beneficially by ICM. Mr. Gross also is the direct and
beneficial owner of 1,745 shares of Common Stock. idealab! Holdings is the
direct and beneficial owner of 13,367,331 shares of Common Stock, which
constitute approximately 29.4% of the 45,532,469 outstanding shares of Common
Stock as of September 30, 1999. idealab! may be deemed to benefcially own the
shares of Common Stock owned by idealab! Holdings, which is the wholly-owned
subsidiary of idealab!. Mr. Gross may also be deemed to beneficially own the
shares held by idealab! Holdings in his capacity as the Chairman of the Board of
Directors and President of idealab! and exercises voting and investment power
over shares held beneficially by idealab! Holdings. As of March 6, 2000, certain
executive officers and directors of the Reporting Persons owned an aggregate of
approximately 439,731 shares of Common Stock. The Reporting Persons disclaim any
beneficial interest in such shares.
(b) The Reporting Persons have sole or shared power to vote or
direct the vote, and to dispose or to direct the disposition of the 13,369,076
shares of Common Stock that they own of record or may be deemed to beneficially
own.
(c) Except as described in Item 4 above, there have not been
any transactions in the shares of Common Stock effected by or for the account of
either of the Reporting Persons or any executive officer or director of either
of the Reporting Persons during the past 60 days.
(d) Except as stated in this Item 5, to the best knowledge of
the Reporting Persons, no other person has the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Common Stock owned of record or beneficially owned by either of the
Reporting Persons.
(e) Not applicable.
<PAGE>
Page 7 of 11
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
Item 6 of the Schedule 13D is hereby amended by adding the
following:
The information set forth in the last paragraph of Item 4 is
incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
Exhibit 1.(1) Joint Filing Agreement, dated as of January 3, 2000.
Exhibit 2.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Kline Hawkes California SBIC.
Exhibit 3.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Howard L. Morgan.
Exhibit 4.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Oliver A. McBryan.
Exhibit 5.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Bob Kavner.
Exhibit 6.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and William S. Elkus.
Exhibit 7.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Bruce Hendricks.
Exhibit 8.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Moore Global Investments, Ltd., Multi-Strategies Fund Ltd., Remington
Investments Strategies, L.P. and Multi-Strategies Fund L.P.
Exhibit 9.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Jim Armstrong.
Exhibit 10.(2) Stock Purchase Agreement, dated as of January 17, 2000, by and between Bill Gross'
idealab! and idealab! Capital Partners I-B, L.P.
Exhibit 11. Stockholder Agreement, dated as of March 3, 2000, by and between Bill Gross' idealab!
and GoTo.com, Inc.
Exhibit 12. Joint Filing Agreement, dated as of March 6, 2000.
</TABLE>
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(1) Previously filed on Schedule 13D, dated January 3, 2000.
(2) Previously filed on Amendment No. 1 to Schedule 13D, dated January 20,
2000.
<PAGE>
Page 8 of 11
SIGNATURES
After reasonable inquiry and to the best of our knowledge and
belief, the undersigned certify that the information set forth in this statement
is true, complete and correct.
Date: March 6, 2000 BILL GROSS
/s/ BILL GROSS
------------------------------
Dated: March 6, 2000 BILL GROSS' IDEALAB!
By: /s/ BILL GROSS
----------------------------
Name: Bill Gross
Title: Chairman of the Board
and President
Dated: March 6, 2000 IDEALAB! HOLDINGS, L.L.C.
By: /s/ BILL GROSS
----------------------------
Name: Bill Gross
Title: Managing Member
<PAGE>
Page 9 of 11
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
BILL GROSS' IDEALAB!
The name, business address, present principal occupation or
employment, and the name, principal business and address of any corporation or
other organization in which such employment is conducted, of each of the
directors and executive officers of Bill Gross' idealab! is set forth below.
Unless otherwise indicated below, the business address of each director and
executive officer is Bill Gross' idealab!, 130 West Union Street, Pasadena,
California 91103.
<TABLE>
<CAPTION>
NAME AND BUSINESS POSITION WITH BILL GROSS' PRINCIPAL OCCUPATION, IF OTHER THAN AS
ADDRESS IDEALAB! EXECUTIVE OFFICER OF BILL GROSS' IDEALAB!
----------------------------------- ---------------------------------- ----------------------------------------
<S> <C> <C>
Bill Gross Chairman of the Board and
President
Lawrence Gross Vice-Chairman and Director
Robert Kavner Vice-Chairman and Director
Howard Morgan Vice-Chairman and Director
Thomas Hughes Director
Marcia Goodstein Vice-Chairman,
Chief Operating Officer and
Director
Bradley O. Ramberg Vice-President and
Chief Financial Officer
Douglas McPherson Vice-President and
General Counsel
</TABLE>
<PAGE>
Page 10 of 11
DIRECTORS AND EXECUTIVE OFFICERS OF
IDEALAB! HOLDINGS, L.L.C.
The name, business address, present principal occupation or
employment, and the name, principal business and address of any corporation or
other organization in which such employment is conducted, of each of the
directors and executive officers of idealab! Holdings, L.L.C. is set forth
below. Unless otherwise indicated below, the business address of each director
and executive officer is idealab! Holdings, L.L.C., 130 West Union Street,
Pasadena, California 91103.
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION, IF OTHER THAN AS
NAME AND BUSINESS POSITION WITH IDEALAB! HOLDINGS, EXECUTIVE OFFICER OF IDEALAB!
ADDRESS L.L.C. HOLDINGS, L.L.C.
----------------------------------- ---------------------------------- ----------------------------------------
<S> <C> <C>
Bill Gross' idealab! Member
Bill Gross Managing Member
</TABLE>
<PAGE>
Page 11 of 11
EXHIBIT INDEX
<TABLE>
<S> <C>
Exhibit 1.(1) Joint Filing Agreement, dated as of January 3, 2000.
Exhibit 2.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Kline Hawkes California SBIC.
Exhibit 3.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Howard L. Morgan.
Exhibit 4.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Oliver A. McBryan.
Exhibit 5.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Bob Kavner.
Exhibit 6.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and William S. Elkus.
Exhibit 7.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Bruce Hendricks.
Exhibit 8.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Moore Global Investments, Ltd., Multi-Strategies Fund Ltd., Remington
Investments Strategies, L.P. and Multi-Strategies Fund L.P.
Exhibit 9.(1) Stock Purchase Agreement, dated as of December 23, 1999, by and between Bill Gross'
idealab! and Jim Armstrong.
Exhibit 10.(2) Stock Purchase Agreement, dated as of January 17, 2000, by and between Bill Gross'
idealab! and idealab! Capital Partners I-B, L.P.
Exhibit 11. Stockholder Agreement, dated as of March 3, 2000, by and between Bill Gross' idealab!
and GoTo.com, Inc.
Exhibit 12. Joint Filing Agreement, dated as of March 6, 2000.
</TABLE>
--------------------
(1) Previously filed on Schedule 13D, dated January 3, 2000.
(2) Previously filed on Amendment No. 1 to Schedule 13D, dated January 20,
2000.
<PAGE>
EXHIBIT 11
GOTO.COM, INC.
IDEALAB! STOCKHOLDER AGREEMENT
This Stockholder Agreement (this "Agreement") is made as of March 3, 2000
by and between Bill Gross' idealab!, a California corporation ("BGIL"), and
GoTo.com, Inc., a Delaware corporation (the "Company").
WHEREAS, the Company and BGIL desire to make certain covenants and
agreements with one another pursuant to this Agreement
NOW THEREFORE, in consideration of the covenants and promises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
NOTE: CERTAIN CAPITALIZED TERMS USED HEREIN ARE DEFINED IN ARTICLE III
HEREOF.
ARTICLE I
COVENANTS
1.1 BGIL COVENANTS.
(a) Until March 3, 2002, BGIL will not, and will cause its Affiliates
not to, directly or indirectly, except with the prior written consent of the
Company's Board of Directors and, without limitation, a majority of the
Independent Directors (as defined in Section 2.3):
(i) become a Beneficial Owner of 35% or more of the outstanding
Common Stock;
(ii) transfer Beneficial Ownership of any Common Stock of the
Company except (A) pursuant to the terms of a merger,
consolidation or liquidation of, or tender offer or other
business combination transaction with respect to, the
Company, in each case approved by the Company's Board of
Directors and, without limitation, by a majority of the
Independent Directors, (B) pro rata distributions by ICP of
shares of Common Stock currently held by it to its limited
partners consistent with past practice, or (C) other
transfers to third parties, provided that any such third
party (together with any of its Affiliates and Associates)
would not, to BGIL's knowledge after inquiry, following the
completion of such
<PAGE>
transfer, Beneficially Own 15% or more of the outstanding
Common Stock of the Company; or
(iii) knowingly assist or advise, or knowingly provide or arrange
financing to facilitate, another Person, or group of Persons
acting in concert, to become the Beneficial Owner of 15% or
more of the outstanding Common Stock.
(b) Until March 3, 2002, BGIL shall use good faith reasonable efforts
to notify the Company of any proposed amendment to BGIL's Schedule 13D at least
2 business days prior to such amendment.
(c) Anything in this Agreement to the contrary notwithstanding, this
Agreement shall not prohibit or restrict in any way any of the following: (i)
actions taken by BGIL's nominees or designees on the Board of Directors of the
Company in their capacity as directors, and (ii) the exercise by BGIL and its
Affiliates and Associates of their voting rights with respect to any shares of
Common Stock of the Company or other voting securities of the Company that they
are permitted to Beneficially Own pursuant to the terms of this Agreement.
1.2 COMPANY COVENANTS. Until March 3, 2002, so long as BGIL is the
Beneficial Owner of at least 20% of the outstanding Common Stock, the Company
will not, without the prior written consent of BGIL, adopt a "shareholder rights
plan" (commonly referred to as a "poison pill"); PROVIDED, HOWEVER, that if, in
the good faith judgment of the Board of Directors of the Company, after
consideration of its fiduciary duties, adoption of such a shareholder rights
plan would be in the best interests of the shareholders of the Company, the
Company may adopt such a shareholder rights plan without the consent of BGIL so
long as the percentage thresholds set forth therein are no more restrictive to
BGIL than the terms of this Agreement. If the Company adopts a shareholder
rights plan, this Agreement shall terminate and be of no further force or
effect. The Company hereby represents that, as of the date of this Agreement, it
has no intention of currently adopting a "shareholder rights plan."
ARTICLE II
MISCELLANEOUS
2.1 GOVERNING LAW. This Agreement shall be governed in all respects by the
internal laws of the State of Delaware.
2.2 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of,
and be binding upon, the parties hereto and their respective successors and
assigns.
2.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject hereof. Except as expressly provided herein, neither this Agreement nor
any term hereof may be amended, waived,
<PAGE>
discharged or terminated other than by a written instrument signed by the party
against whom enforcement of any such amendment, waiver, discharge or termination
is sought, including on behalf of the Company, approval by a majority of the
members of the Board of Directors that are not, and have not for the then
previous twelve (12) months been, Affiliates of BGIL or any of its Affiliates or
Associates (other than the Company) (such members of the Board of Directors, the
"Independent Directors").
2.4 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by facsimile
transmission, by hand or by messenger, addressed:
(a) If to BGIL, to:
Bill Gross' idealab!
130 West Union Street
Pasadena, California 91103
Attn: General Counsel
(Telephone) (626) 535-2828
(Facsimile) (626) 535-2703
With a copy to:
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071-2007
Attn: Paul D. Tosetti, Esq.
(Telephone) (213) 485-1234
(Facsimile) (213) 891-8763
(b) If to the Company, to:
GoTo.com, Inc.
72 North Pasadena Avenue
Pasadena, CA 91103
Attn: Chief Financial Officer
(Telephone) (626) 685-6890
(Facsimile) (626) 685-5601
<PAGE>
With a copy to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
Two Palo Alto Square
Palo Alto, CA 94306
Attn: Martin W. Korman, Esq.
Michael D. Weisberg, Esq.
(Telephone) (650) 493-9300
(Facsimile) (650) 493-6811
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, if sent by facsimile, the first business day after the
date of confirmation that the facsimile has been successfully transmitted to the
facsimile number for the party notified, or, if sent by mail, at the earlier of
its receipt or 72 hours after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail, addressed and
mailed as aforesaid.
2.5 DELAYS OR OMISSIONS. Except as expressly provided herein, no delay or
omission to exercise any right, power or remedy accruing to a party under this
Agreement, shall impair any such right, power or remedy nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring.
2.6 EXPENSES. The Company and BGIL shall bear their own expenses incurred
with respect to this Agreement and the transactions contemplated hereby.
2.7 SPECIFIC PERFORMANCE. The parties hereto acknowledge and agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached and that such damage would not be compensable in money
damages and that it would be extremely difficult or impracticable to measure the
resultant damages. It is accordingly agreed that any party hereto shall be
entitled to an injunction or injunctions to prevent breaches of the provisions
of the Agreement and to enforce specifically the terms and provisions hereof, in
addition to any other remedy to which it may be entitled at law or equity, and
such party that is sued for breach of this Agreement expressly waives any
defense that a remedy in damages would be adequate and expressly waives any
requirement in an action for specific performance for the posting of a bond by
the party bringing such action.
2.8 FURTHER ASSURANCES. The parties hereto shall do and perform or cause to
be done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments or documents as any
other party may reasonably request from time to time in order to carry out the
intent and purposes of this Agreement and the
<PAGE>
consummation of the transactions contemplated hereby. Neither the Company nor
BGIL shall voluntarily undertake any course of action inconsistent with
satisfaction of the requirements applicable to them set forth in this Agreement
and each shall promptly do all such acts and take all such measures as may be
appropriate to enable them to perform as early as practicable the obligations
herein and therein required to be performed by them.
2.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by fewer than all of the parties,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
2.10 SEVERABILITY. In the event that any provision of .this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided, that no such severability shall be effective
if it materially changes the economic impact of this Agreement on any party.
2.11 CAPTIONS. Headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be relied upon in
construing this Agreement. Use of any gender herein to refer to any person shall
be deemed to comprehend masculine, feminine, and neuter unless the context
clearly requires otherwise.
2.12 ATTORNEYS' FEES. In any action at law or suit in equity in relation to
this Agreement, the prevailing party in such action or suit shall be entitled to
receive a reasonable sum for its attorneys' fees and all other reasonable costs
and expenses incurred in such action or suit.
2.13 PUBLICITY. The parties hereto shall act in good faith to coordinate
any public announcements concerning the matters set forth herein.
ARTICLE III
DEFINITIONS
For the purpose of this Agreement, the following terms shall have the
meanings specified with respect thereto below:
"Affiliate" and "Associate" shall have the respective meanings set forth in
Rule 12b-2 of the rules and regulations promulgated under the Exchange Act.
A person or entity (either, a "Person") shall be deemed the "Beneficial
Owner" of and shall be deemed to "beneficially own" any securities:
<PAGE>
(i) which such Person or any of such Person's Affiliates or Associates
beneficially owns, directly or indirectly, for purposes of Section 13(d) of the
Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or
regulation);
(ii) which a Person or any of such Person's Affiliates or Associates
has (A) the right to acquire (whether such right is exercisable immediately or
only after the passage of time) pursuant to any agreement, arrangement or
understanding (other than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering of
securities), or upon the exercise of conversion rights, exchange rights, rights,
warrants or options, or otherwise; PROVIDED, HOWEVER, that a Person shall not be
deemed to be the Beneficial Owner of, or to beneficially own, (1) securities
tendered pursuant to a tender or exchange offer made by or on behalf of such
Person or any of such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange, or (2) securities which a
Person or any of such Person's Affiliates or Associates may be deemed to have
the right to acquire pursuant to any merger or other acquisition agreement
between the Company and such Person (or one or more of its Affiliates or
Associates) if such agreement has been approved in advance by the Board of
Directors of the Company; or (B) the right to vote pursuant to any agreement,
arrangement or understanding; PROVIDED, HOWEVER, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own, any security if the
agreement, arrangement or understanding to vote such security (1) arises solely
from a revocable proxy or consent given to such Person in response to a public
proxy or consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations of the Exchange Act and (2) is not also then
reportable on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned, directly or indirectly, by any
other person or entity (or any Affiliate or Associate thereof) with which a
Person or any of such Person's Affiliates or Associates has any agreement,
arrangement or understanding, whether or not in writing (other than customary
agreements with and between underwriters and selling group members with respect
to a bona fide public offering of securities) for the purpose of acquiring,
holding, voting or disposing of any securities of the Company.
"Common Stock" shall mean shares of the Common Stock of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"ICP" shall mean any of idealab! Capital Partners I-A, L.P., a Delaware
limited partnership, or idealab! Capital Partners I-B, L.P., a Delaware limited
partnership.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
"COMPANY"
GOTO.COM, INC.
By: /s/ JEFFREY BREWER
-------------------------------
Name: Jeffrey Brewer
Title: Executive Chairman of
the Board
"BGIL"
BILL GROSS' IDEALAB!
By: /s/ BILL GROSS
--------------------------------
Name: Bill Gross
Title: Chairman of the Board and
President
<PAGE>
EXHIBIT 12
JOINT FILING AGREEMENT
The undersigned hereby agree to jointly file a statement on Schedule 13D,
together with any amendments thereto (collectively, the "Schedule 13Ds"), with
the Securities and Exchange Commission pursuant to the requirements of Rule
13d-1(f) under the Securities Exchange Act of 1934, as amended.
This Joint Filing Agreement may be signed in counterpart copies.
(Signature Page Follows)
<PAGE>
Date: March 6, 2000 BILL GROSS
/s/ BILL GROSS
------------------------------
Date: March 6, 2000 BILL GROSS' IDEALAB!
By:/s/ BILL GROSS
---------------------------
Name: Bill Gross
Title: Chairman of the Board and
President
Date: March 6, 2000 IDEALAB! HOLDINGS, L.L.C.
By:/s/ BILL GROSS
---------------------------
Name: Bill Gross
Title: Managing Member
