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As filed with the Securities and Exchange Commission on July 13, 1999
Registration No. 333-76415
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
GOTO.COM, INC.
(Exact name of Registrant as specified in its charter)
Delaware 95-4652060
(State of incorporation) (I.R.S. Employer
Identification No.)
140 West Union Street
Pasadena, California 91103
(Address of Principal Executive Offices)
1998 Stock Plan
1999 Employee Stock Purchase Plan
(Full title of the Plans)
Jeffrey S. Brewer
Chief Executive Officer
GOTO.COM, INC.
140 West Union Street
Pasadena, California 91103
(626) 685-5600
(Name, address and telephone number of agent for service)
Copies to:
Martin W. Korman
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED
MAXIMUM MAXIMUM AMOUNT
AMOUNT OFFERING AGGREGATE OF
TITLE OF EACH CLASS OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock issuable under 1998 Stock Plan 7,404,834 $ 2.07(1) $ 15,328,006 $ 4,261.19
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Common Stock issuable under 1998 Stock Plan 1,095,166 48.4375(2) 53,047,103 14,747.09
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Common Stock issuable under 1999 Employee 2,000,000 41.1719(3) 82,343,800 22,891.58
Stock Purchase Plan
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Total 10,500,000 $150,718,909 $41,899.86
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(1) Computed in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. Computation based on the weighted
average per share price (rounded to the nearest cent) of options granted
under the referenced plan, the shares issuable under which are registered
hereby.
(2) Computed in accordance with Rule 457(c).
(3) Computed in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The computation is based upon the
price computed in accordance with Rule 457(c), multiplied by 85%,
which is the percentage of the trading purchase price applicable to
purchases under the referenced plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Registrant with the Securities and
Exchange Commission are incorporated by reference in this registration
statement:
(a) The Registrant's prospectus filed pursuant to Rule 424(b)
on or about June 18, 1999.
(b) The description of common stock contained in Registrant's
Registration Statement on Form 8-A (Registration No. 000-26365) filed
on June 15, 1999 under the Securities Exchange Act of 1934, including
any amendment or report subsequently filed by Registrant for the
purpose of updating that description.
In addition, all documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Certain investment partnerships composed of certain current and former
members of and persons associated with Wilson Sonsini Goodrich & Rosati,
Professional Corporation, as well as certain individual attorneys of such firm,
beneficially own shares of GoTo.com's common stock.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act"). The Registrant's Certificate of Incorporation and Bylaws provide that the
Registrant shall indemnify its directors and officers to the fullest extent
permitted by Delaware law, including circumstances in which indemnification is
otherwise discretionary under Delaware law.
The Registrant currently carries indemnity insurance pursuant to which
its directors and officers are insured under certain circumstances against
certain liabilities or losses, including liabilities under the Securities Act.
The Registrant has entered into indemnity agreements with certain directors and
executive officers. These agreements,
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among other things, indemnify the directors and executive officers for certain
expenses (including attorneys' fees), judgments, fines, and settlement payments
incurred by such persons in any action, including any action by or in the right
of the Registrant, in connection with the good faith performance of their duties
as a director or officer. The indemnification agreements also provide for the
advance payment by the Registrant of defense expenses incurred by the director
or officer; however, the affected director or officer must undertake to repay
such amounts advanced if it is ultimately determined that such director or
officer is not entitled to be indemnified.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following Exhibits are filed as a part of this Registration
Statement:
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<S> <C>
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Wilson, Sonsini, Goodrich & Rosati (see Exhibit
5.1).
24.1 Power of Attorney (see page II-4)
10.3* 1998 Stock Plan and forms of option agreements thereunder
10.4* 1999 Employee Stock Purchase Plan and form of agreement
thereunder
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Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
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* Incorporated by reference from the Registrant's Registration Statement
on Form S-1 (File No. 333-76415).
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be an initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the Delaware General Corporation Law, the
Certificate of Incorporation of the Registrant, the Bylaws of the Registrant,
Indemnification Agreements entered into between the Registrant and it officers
and directors, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by the
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of the such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pasadena, State of California, on the 12th day of
July, 1999.
GOTO.COM, INC.
By: /s/ Jeffrey S. Brewer
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Jeffrey S. Brewer
Chief Executive Officer
POWER OF ATTORNEY
Each Director and/or officer of the Registrant whose signature appears
below hereby appoints Jeffrey S. Brewer and Todd Tappin and each of them
severally, as his attorney-in-fact, to sign in his name and behalf, in any and
all capacities stated below, and to file with the Commission any and all
amendments, including post-effective amendments, to this registration statement,
and the Registrant hereby also appoints each such person as its attorney-in-fact
with like authority to sign and file any such amendments in its name and behalf.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following person in the capacities
and on the date indicated:
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Jeffrey S. Brewer Chief Executive Officer and Director July 12, 1999
- ----------------------------------- (Principal Executive Officer
Jeffrey S. Brewer
/s/ Todd Tappin Chief Financial Officer (Principal July 12, 1999
- ----------------------------------- Financial Officer)
Todd Tappin
/s/ Alan Colner Director July 12, 1999
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Alan Colner
/s/ Timothy Draper Director July 12, 1999
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Timothy Draper
/s/ William Elkus Director July 12, 1999
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William Elkus
/s/ William Gross Director July 12, 1999
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William Gross
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<TABLE>
<S> <C> <C>
/s/ Robert M. Kavner Director July 12, 1999
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Robert M. Kavner
/s/ Linda Fayne Levinson Director July 12, 1999
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Linda Fayne Levinson
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Exhibit 5.1
July 12, 1999
GoTo.com, Inc.
140 West Union Street
Pasadena, CA 91103
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about July 13, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of shares of your Common Stock (the
"Shares") to be issued pursuant to your 1998 Stock Plan and 1999 Employee Stock
Purchase Plan (the "Plans"). As your counsel in connection with this
transaction, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the issuance and sale
of the Shares pursuant to the Plans.
It is our opinion that, the Shares are duly authorized and when issued
and sold in the manner described in the Plans and pursuant to the agreements
which accompany grants under the Plans, the Shares will be legally and validly
issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON, SONSINI, GOODRICH & ROSATI,
Professional Corporation
/S/ WILSON, SONSINI, GOODRICH & ROSATI
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the registration of 8,500,000 shares of its common stock
issuable under the 1998 Stock Plan and 2,000,000 shares of its common stock
issuable under the 1999 Employee Stock Purchase Plan of our report dated April
2, 1999, with respect to the financial statements and schedule of GoTo.com, Inc.
included in its Registration Statement (Form S-1 No. 333-76415) filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
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Ernst & Young LLP
Los Angeles, California
July 12, 1999
