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As filed with the Securities and Exchange Commission on August 2, 2000
Registration No. 333-76415
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GOTO.COM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 95-4652060
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
74 NORTH PASADENA AVENUE
THIRD FLOOR
PASADENA, CA 91103
(626) 685-5600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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1998 STOCK PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(FULL NAME OF PLAN)
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TED MEISEL
CHIEF EXECUTIVE OFFICER
GOTO.COM, INC.
74 NORTH PASADENA AVENUE, THIRD FLOOR
PASADENA, CA 91103
(626) 685-5600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copies to:
MARTIN W. KORMAN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock issuable under 1998 6,820,893 $15.6875(1) $107,019,811 $28,253
Stock Plan.....................
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Common Stock issuable under 1999 1,365,577 $13.3344(2) $ 18,203,141 $ 4,806
Employee Stock Purchase Plan...
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TOTALS.................... 8,186,470 $125,222,952 $33,059
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(1) Price per share and aggregate offering price estimated in accordance with
Rule 457(c) and (h)(1) under the Securities Act of 1933, as amended, solely
for the purpose of calculating the registration fee. The computation is
based on the average of the high and low price as reported on the Nasdaq
National Market on July 28, 2000.
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(2) Computed in accordance with Rules 457(h)(1) 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
EXPLANATORY NOTE:
This Registration Statement is filed with respect to additional shares
of Common Stock that may be issued under the Registrant's 1998 Stock Plan as a
result of certain automatic increases in the number of authorized shares for
issuance under the 1998 Stock Plan and as a result of an increase approved by
the Board of Directors and stockholders of the Registrant. This Registration
Statement also is filed with respect to additional shares of Common Stock that
may be issued under the Registrant's 1999 Employee Stock Purchase Plan as a
result of certain automatic increases in the number of authorized shares for
issuance under the 1999 Employee Stock Purchase Plan.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the year ended December 31,
1999, filed pursuant to the Securities and Exchange Act of 1934 (the
"Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2000, filed pursuant to the Exchange Act.
(c) The Registrant's Current Report on Form 8-K dated February 3, 2000 filed
with the Commission.
(d) The Registrant's Amended Current Report on Form 8-K/A dated March 16, 2000
filed with the Commission.
(e) The Registrant's Current Report on Form 8-K dated May 8, 2000 filed with the
Commission.
(f) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A (File No. 000-26365) filed on June 15,
1999 under the Exchange Act and any amendment or report subsequently filed
for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the filing of this Registration
Statement, and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which de-registers all securities
then remaining unsold, shall be deemed to be incorporated by reference in the
Registration Statement and to be 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.
As of the date of this filing, 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.
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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, 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 CLAIMS.
Not applicable.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati.
10.3* 1998 Stock Plan and forms of option agreements
thereunder.
10.4* 1999 Employee Stock Purchase Plan and form of agreement
thereunder.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Frank, Rimerman & Co. LLP, Independent
Auditors.
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
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(*) Previously filed as an exhibit to Registrant's Registration Statement on
Form S-1 (File No. 333-76415) declared effective by the Commission on June 18,
1999.
ITEM 9. UNDERTAKINGS.
(a) 415 Offering. 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:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement.
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(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-3 ((Section )239.13 of this chapter)
or Form S-8 ((Section )239.16b of this chapter), and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference 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 that time shall be deemed to be the initial bona
fide offering thereof.
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 Securities Exchange Act of 1934)
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 the
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 Corporations Law, the
Certificate of Incorporation of the Registrant, the Bylaws of the Registrant,
Indemnification Agreements entered into between the Registrant and its 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 controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of 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 August 1, 2000.
GOTO.COM, INC.
By: /s/ Ted Meisel
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Ted Meisel
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL THESE PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Ted Meisel and Todd Tappin and
each of them severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8 and to file the same, with exhibits thereto
and other documents in connection therewith, with the Commission, hereby
ratifying and conforming all that each said attorneys-in-fact, or his substitute
or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
Date: August 1, 2000 /s/ Jeffrey S. Brewer
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Jeffrey S. Brewer, Chairman of the Board
Date: August 1, 2000 /s/ Ted Meisel
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Ted Meisel, President, Chief Executive
Officer and Director (Principal Executive
Officer)
Date: August 1, 2000 /s/ Todd Tappin
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Todd Tappin, Chief Financial Officer,
(Principal Financial Officer and
Principal Accounting Officer)
Date: August 1, 2000 /s/ William Elkus
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William Elkus, Director
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Date: August 1, 2000 /s/ William Gross
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William Gross, Director
Date: August 1, 2000 /s/ Robert M. Kavner
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Robert M. Kavner, Director
Date: August 1, 2000 /s/ Linda Fayne Levinson
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Linda Fayne Levinson, Director
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati.
10.3* 1998 Stock Plan and forms of option agreements
thereunder.
10.4* 1999 Employee Stock Purchase Plan and form of agreement
thereunder.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Frank, Rimerman & Co. LLP, Independent
Auditors
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
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(*) Previously filed as an exhibit to Registrant's Registration Statement on
Form S-1 (File No. 333-76415) declared effective by the Commission on June 18,
1999.
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