CHANGE IN CONTROL AGREEMENT
Exhibit 10.6A
This CHANGE IN CONTROL AGREEMENT (the “Agreement”) is entered into as of
_________, 200___, between GO DADDY SOFTWARE, INC., an Arizona corporation (“Company”), and _________
(“Executive’’) to be effective as of ________200___ (the “Effective Date”).
RECITALS:
A. Executive has served as the _________ of the Company.
B. Company considers the maintenance of a sound and vital management to be essential to protecting
and enhancing the best interests of Company and its shareholder. Company recognizes that
identifying possible merger candidates, preparing for a public offering, or other changes in the
Company’s structure may be unsettling to Executive and other certain senior executives of Company
and may result in the departure or distraction of management personnel to the detriment of Company
and its shareholder. The board of directors (“Board”) has previously determined that it is in the
best interests of Company and its shareholder for Company to minimize these concerns by entering
into this Change in Control Agreement with Executive, to provide Executive with a continuation of
benefits in the event Executive’s employment with Company terminates under certain limited
circumstances. In exchange, Executive has agreed to continue his/her employment with Company under
the terms of this Agreement.
NOW, THEREFORE, in consideration of the promises, covenants and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
| I. | ACCELERATED VESTING OF STOCK OPTIONS; CONTINUED RECEIPT OF BENEFITS. |
(a) Immediate Vesting of Stock Options. Notwithstanding anything to the contrary
contained in the Xxxxxxx Advanced Holdings, Inc. July 16, 2002 Stock Option Plan, as of the
Effective Date, Executive shall be entitled to exercise his/her stock options, upon a change in
control, as follows:
| (i) | Change in control Vesting Acceleration. In the event of a change in control, as definied in Section III (“Change in Control”), after the Effective Date of this Agreement, any and all unvested Stock Options held by Executive shall become 100% vested and exercisable, except as set forth in Section III, subject to the following subparagraph: | ||
| (ii) | Exercisability upon Change in Control. No Options held by Executive are transferable by Executive upon a Change in Control otherwise than by will or the laws of descent and distribution. |
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(b) Continued Receipt of Benefits and Compensation. Upon a Change in Control, Executive will
receive the same salary, bonus eligibility and bonus structure, benefits (including the same or
substantially similar levels of health, life, disability and retirement benefits) and other
perquisites as Executive was receiving immediately prior to the Change in Control, as long as
Executive continues to perform the same job function. Executive shall be entitled to hold the same
or substantially similar job titles, offices and authority, and shall continue to be based in the
same or substantially the same geographic location as immediately prior to the Change in control.
| II. | RECEIPT OF BENEFITS IN EVENT OF TERMINATION UPON CHANGE IN CONTROL. |
(a) Receipt of Benefits. Executive is entitled to receive a severance benefit if Executive
is terminated after a Change in Control or as a result of a Change in Control. The Company will
provide Executive with the following benefits.
(1) A lump sum severance payment, paid within ten (10) days following Executive’s last day of work,
equal to the sum of:
(i) any bonus compensation, including deferred bonuses, to which Executive would have been entitled
under the Company’s bonus plan; plus
(ii) an amount equal to the salary Executive received during the most recent twelve-month period;
plus
(iii) an amount equal to all sums Executive received as bonus compensation during the most recent
twelve (12)-month period.
(2) Executive shall continue to have the use of any leased automobile provided by Company until the
natural expiration of such lease, with all lease payments and insurance premiums paid by Company.
At the expiration of such lease, Executive shall have the right, in Executive’s sole discretion, to
acquire such automobile or return it to the dealer, in accordance with the provisions of the
automobile lease.
(3) Nothing in this Agreement shall be deemed to limit or eliminate any other benefits (such as
COBRA) to which Executive may be entitled by law or any other agreement between Executive and the
Company.
| III. | CHANGE IN CONTROL DEFINED. |
For purposes of this Agreement, a “Change in Control” means any one or more of the following
events:
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(1) The common stock of the Company is listed and publicly traded on any stock exchange within the
United States. However, If Xxxxxx X. Xxxxxxx retains at least 50% controlling interest in the
Company as of the date the Company is listed and publicly traded on any stock exchange within the
United States, then fifty (50%) percent (not one hundred percent (100%)) of the unvested options in
each option grant become vested; or
(2) The completion of one or more transactions by which any person or entity (and his, her, or its
affiliates) becomes the beneficial owner of more than 50% of the voting power of the Company’s
securities; or
(3) Any merger, consolidation or liquidation of the Company in which the Company is not the
continuing or surviving company or pursuant to which stock would be converted into cash, securities
or other property, other than a merger of the Company in which the holders of the shares of stock
immediately before the merger have the same proportionate ownership of
common stock of the surviving company immediately after the merger; or
(4) The shareholder of the Company approves any plan or proposal for the liquidation or dissolution
of the Company; or
(5) Substantially all of the assets of the Company are sold or otherwise transferred to parties
that are not within a “controlled group of corporations” (as defined in Section 1563 of the
Internal Revenue Code) in which the Company is a member at the time of such sale or transfer.
| IV. | DISPUTE RESOLUTION. |
(a) Mediation. Any and all disputes arising under, pertaining to or touching
upon this Agreement, or the statutory rights or obligations of either party hereto, shall, if not
settled by negotiation, be subject to non-binding mediation before an independent mediator.
Notwithstanding the foregoing, both Executive and Company may seek preliminary injunctive or other
judicial relief if such action is necessary to avoid irreparable damage during the pendency of the
proceedings described in this Article IV. Any demand for mediation shall be made in writing and
served upon the other party to the dispute, by certified mail, return receipt requested, at the
address specified in Article IV. The demand shall set forth with reasonable specificity the basis
of the dispute and the relief sought. The mediation hearing will occur at a time and place
convenient to the parties in Maricopa County, Arizona, within thirty (30) days of the date of
selection or appointment of the mediator. Mediation or the waiver of mediation by both parties
shall be a condition precedent to Arbitration.
(b) Arbitration. In the event that the dispute is not settled through mediation, the
parties shall then proceed to binding arbitration before an independent arbitrator. The mediator
shall not serve as the arbitrator. ALL DISPUTES INVOLVING ALLEGED UNLAWFUL EMPLOYMENT
DISCRIMINATION, TERMINATION BY ALLEGED
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BREACH
OF CONTRACT OR POLICY, OR ALLEGED EMPLOYMENT TORT COMMITTED BY COMPANY OR A
REPRESENTATIVE OF COMPANY, INCLUDING CLAIMS OF VIOLATIONS OF FEDERAL OR STATE
DISCRIMINATION STATUTES OR PUBLIC POLICY, SHALL BE RESOLVED PURSUANT TO THIS ARTICLE IV
AND THERE SHALL BE NO RECOURSE TO COURT, WITH OR WITHOUT A JURY TRIAL.
The arbitration hearing shall occur at a time and place convenient to the parties in Maricopa
County, Arizona, within sixty (60) days of selection or appointment of the arbitrator unless such
time period is extended by the arbitrator for good cause shown. The arbitration shall be governed
by the National Rules for the Resolution of Employment Disputes of
the American Arbitration. Association (“AAA”) in effect on
the date of the first notice of demand for arbitration.
Notwithstanding any provisions in such rules to the contrary, the arbitrator shall issue findings
of fact and conclusions of law, and an award, within fifteen (15) days of the date of the hearing
unless the parties otherwise agree.
(c)
Indemnity. Except for Executive’s gross negligence or willful misconduct,
Company agrees to indemnify, defend and save Executive in the discharge of Executive’s
duties or the provisions of this Agreement, completely harmless in respect to any action,
cause of action, suit, debt, cost, expense, claim, or demand whatsoever brought by any third
person whomsoever, at law or in equity, in connection with the Company or the performance by
Executive of any and all of Executive’s obligations under this Agreement or Executive’s
professional duties, including without limitation, paying the legal fees and costs of any
litigation, arbitration or mediation, conducted by counsel of Executive’s choosing
reasonably acceptable to Company. Executive shall have no liability to Company for errors,
acts or omissions of Executive in the good-faith exercise of Executive’s reasonable business
judgment. This indemnity provision shall survive the termination of this Agreement and the
termination of Executive’s employment with the Company.
V. BENEFIT AND BINDING EFFECT
This Agreement shall inure to the benefit of and be binding upon Company, its successors
and assigns, including but not limited to any company, person, or other entity which may acquire
all or substantially all of the assets and business of Company or any company with or into which
Company may be consolidated or merged, and Executive, and Executive’s heirs, executors,
administrators, and legal representatives, provided that the obligations of Executive may not be
delegated.
VI. NOTICES
All notices hereunder shall be in writing and delivered personally or sent by registered
or certified mail, postage prepaid and return receipt requested:
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If to Company, to:
|
GO DADDY SOFTWARE, INC. | |
| Attn: Legal Department | ||
| 00000 X. Xxxxxx Xxxx, Xxx. 000 | ||
| Xxxxxxxxxx, XX 00000 | ||
If to Executive, to: |
||
Either party may change the address to which notices are to be sent to it by giving ten
(10) days written notice of such change of address to the other party in the manner above
provided for giving notice. Notices will be considered delivered on personal delivery or on the
date of deposit in the United States mail in the manner provided for giving notice by mail.
VII. ENTIRE AGREEMENT
The entire understanding and agreement between the parties has been incorporated into this
Agreement, and this Agreement supersedes all other agreements and understandings between
Executive and Company with respect to the relationship of Executive with Company, except with
respect to other continuing or future bonus, incentive, stock option, health, benefit and
similar plans or agreements.
VIII. GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws of the
State of Arizona.
IX. SEVERABILITY
If any one or more of the provisions or parts of a provision contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity or unenforceability shall not affect any other provision or part of a provision of
this Agreement, but this Agreement shall be reformed and construed as if such invalid, illegal
or unenforceable provision or part of a provision had never been contained herein and such
provisions or part thereof shall be reformed so that it would be valid, legal and enforceable to
the maximum extent permitted by law unless the Agreement, as so reformed, does not reflect the
original intent of the parties hereto. Any such reformation shall be read as narrowly as
possible to give the maximum effect to the mutual intentions of Executive and Company.
X. TERMINATION OF EMPLOYMENT
The termination of this Agreement by either party also shall result in the termination of
Executive’s employment relationship with Company in the absence of an express written
agreement providing to the contrary. Neither party intends that any oral employment
relationship continue after the termination of this Agreement.
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| XI. | NO CONSTRUCTION AGAINST EITHER PARTY |
This Agreement is the result of negotiation between Company and Executive and both have had
the opportunity to have this Agreement reviewed by their legal counsel and other advisors.
Accordingly, this Agreement shall not be construed for or against Company or Executive, regardless
of which party drafted the provision at issue. The language in all parts of this Agreement shall in
all cases be construed as a whole according to its fair meaning and not strictly for or against
either party.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the Effective Date.
| GO DADDY SOFTWARE INC., an Arizona corporation |
||||
| By: | ||||
| Chief Executive Officer | ||||
| EXECUTIVE: | ||||
