THE GO DADDY GROUP, INC. CHANGE IN CONTROL PROTECTION AGREEMENT
Exhibit 10.6B
This Agreement is entered into as of May 11, 2006, (the “Effective Date”) by and between The
Go Daddy Group, Inc. (the “Company”), and (“Executive”).
1. Background.
(a) Positions and Duties. As of the Effective Date, Executive serves as INSERT of the
Company.
(b) Purpose. The Company considers the maintenance of a sound and vital management
team to be essential to protecting and enhancing the best interests of the Company and its
shareholder. The 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 the Company and may result in the departure or distraction of
management personnel to the detriment of the Company and its shareholder. The board of directors
(“Board”) has previously determined that it is in the best interests of the Company and its
shareholder for the Company to minimize these concerns by entering into a Change in Control
agreement with Executive, to provide Executive with a continuation of benefits in the event
Executive’s employment with the Company terminates under certain limited circumstances. In
exchange, Executive has agreed to continue his or her employment with the Company under the terms
of this Agreement.
(c) Supersedes. Except as specifically set forth in this Section 1(c), this Agreement
supersedes in its entirety the provisions of the Change in Control Agreement between Executive and
Go Daddy Software, Inc. dated October 28, 2005 (the “Prior Change in Control Agreement”). The
Prior Change in Control Agreement will continue to control the treatment of all stock options
granted prior to the Effective Date.
2. Termination for other than Cause, Death or Disability or Resignation for Good Reason
within Eighteen Months of a Change in Control.
(a) If within eighteen (18) months following a Change in Control:
(i) the Company terminates Executive’s employment with the Company other than for Cause, death
or disability, or
(ii) Executive resigns from his employment with the Company for Good Reason,
then, subject to Section 5, Executive will be entitled to benefits as set forth in Section
2(b).
(b) Benefits. Within ten (10) days of the date of Executive’s termination of employment,
Executive shall be entitled to:
(i) Payment of a lump sum payment equal to the sum of:
(1) any earned but unpaid compensation,
(2) an amount equal to the Executive’s annual Base Salary for the twelve (12) month period
ending on the date of Executive’s termination of employment,
(3) an amount equal to the total of all bonus compensation paid to Executive during the twelve
(12) month period ending on the date of Executive’s termination of employment,
(4) an amount equal to 130% of the average monthly lease and insurance premium payments due on
any vehicle leased by the Company for Executive, multiplied by the number of months remaining on
the current lease of such vehicle as of the date of Executive’s termination of employment.
(ii) Accelerated
vesting of all outstanding equity awards granted on or after the date of this
Agreement as to 50% of the total shares subject to such award.
(iii) For a period of one (1) year following Executive’s termination, the provision to
Executive (and Executive’s dependents, if applicable) of the same level of medical, dental,
accident, disability and life insurance benefits upon substantially the same terms and conditions
(including contributions required by Executive for such benefits) as existed immediately prior to
Executive’s termination (or, if more favorable to Executive, as such benefits and terms and
conditions existed immediately prior to the Change in Control); provided, that, if Executive cannot
continue to participate in the Company plans providing such benefits, the Company shall pay
Executive a cash payment in an amount equivalent, on an after-tax basis to the Executive, to the
cost of such benefits. Notwithstanding the foregoing, in the event Executive becomes reemployed
with another employer and becomes eligible to receive welfare benefits from such employer, the
welfare benefits described herein shall be secondary to such benefits during the period of
Executive’s eligibility, but only to the extent that the Company reimburses Executive for any
increased cost and provides any additional benefits necessary to give Executive the benefits
provided hereunder.
3. Other Terminations of Employment. If Executive’s employment with the Company is
terminated voluntarily by Executive (except upon resignation for Good Reason within eighteen months
after a Change in Control), for Cause by the Company or due to Executive’s death or disability,
then Executive will be entitled to no benefits under this Agreement and will only be eligible for
severance benefits in accordance with the Company’s established policies, if any, as then in
effect.
4. Certain Additional Payments.
(a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment, award, benefit or distribution (or any acceleration of any payment,
award, benefit or distribution) by the Company (or any of its affiliated entities) or any
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entity which effectuates a Change in Control (or any of its affiliated entities) to or for the
benefit of Executive (whether pursuant to the terms of this Agreement or otherwise, but determined
without regard to any additional payments required under this Section 4) (the “Payments”) would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended
(the “Code”), or any interest or penalties are incurred by Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties, are hereinafter collectively
referred to as the “Excise Tax”), then the Company shall pay to Executive an additional payment (a
“Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any
Excise Tax) imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments. For purposes of determining the amount of the
Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest
marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to
be made and (ii) pay applicable state and local income taxes at the highest marginal rate of
taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum
reduction in federal income taxes which could be obtained from deduction of such state and local
taxes.
(b) Subject to the provisions of Section 4(a), all determinations required to be made under
this Section 4, including whether and when a Gross-Up Payment is required, the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be
made by the public accounting firm that is retained by the Company as of the date immediately prior
to the Change in Control (the “Accounting Firm”) which shall provide detailed supporting
calculations both to the Company and Executive within fifteen (15) business days of the receipt of
notice from the Company or the Executive that there has been a Payment, or such earlier time as is
requested by the Company (collectively, the “Determination”). Notwithstanding the foregoing, in
the event (i) the Company shall determine prior to the Change in Control that the Accounting Firm
is precluded from performing such services under applicable auditor independence rules, (ii) the
Audit Committee of the Board of Directors of the Company determines that it does not want the
Accounting Firm to perform such services because of auditor independence concerns or (iii) the
Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, the Company shall appoint another nationally recognized public accounting
firm to make the determinations required hereunder (which accounting firm shall then be referred to
as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company and the Company shall enter into any agreement requested by the Accounting
Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this
Section 4 with respect to any Payments shall be made no later than thirty (30) days following such
Payment. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it
shall furnish the Executive with a written opinion to such effect, and to the effect that failure
to report the Excise Tax, if any, on the Executive’s applicable federal income tax return will not
result in the imposition of a negligence or similar penalty. The Determination by the Accounting
Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the Determination, it is possible that
Gross-Up Payments which will not have been made by the Company should have been made
(“Underpayment”) or Gross-Up Payments are made by the Company which should not have been made
(“Overpayment”), consistent with the calculations required to be made hereunder. In the event that
the Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax,
the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such
Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of
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the Code) shall be promptly paid by the Company to or for the benefit of the Executive. In
the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the
Executive for his or her Excise Tax, the Accounting Firm shall determine the amount of the
Overpayment that has been made and any such Overpayment (together with interest at the rate
provided in Section 1274(b)(2) of the Code) shall be promptly paid by the Executive (to the extent
he or she has received a refund if the applicable Excise Tax has been paid to the Internal Revenue
Service) to or for the benefit of the Company. The Executive shall cooperate, to the extent his or
her expenses are reimbursed by the Company, with any reasonable requests by the Company in
connection with any contests or disputes with the Internal Revenue Service in connection with the
Excise Tax.
5. General Provisions.
(a) Separation Agreement and Release of Claims. The receipt of any severance pursuant
to Section 2 will be subject to Executive signing and not revoking a separation agreement and
release of claims in a form reasonably satisfactory to the Company. No severance pursuant to this
Agreement will be paid or provided until the separation agreement and release agreement becomes
effective.
(b) Section 409A. Notwithstanding anything to the contrary in this Agreement, any
cash severance payments otherwise due to Executive pursuant to Section 2 or otherwise on or within
the six-month period following Executive’s termination will accrue during such six-month period and
will become payable in a single lump sum payment on the date six (6) months and one (1) day
following the date of Executive’s termination, provided, that such cash severance payments will be
paid earlier, at the times and on the terms set forth in the applicable provisions of Section 2, if
the Company reasonably determines that the imposition of additional tax under Section 409A of the
Code will not apply to an earlier payment of such cash severance payments. In addition, this
Agreement will be deemed amended to the extent necessary to avoid imposition of any additional tax
or income recognition prior to actual payment to Executive under Code Section 409A and any
temporary, proposed or final Treasury Regulations and guidance promulgated thereunder and the
parties agree to cooperate with each other and to take reasonably necessary steps in this regard.
(c) No Duty to Mitigate. Executive will not be required to mitigate the amount of any
payment contemplated by this Agreement, nor will any earnings that Executive may receive from any
other source reduce any such payment.
6. Definitions.
(a) Cause means the Executive’s
(i) willfully engaging in illegal conduct or gross misconduct which is materially
injurious to the Company;
(ii) conviction of, or entry of a plea of nolo contendere or guilty to, a felony or a crime of
moral turpitude;
(iii) engaging in fraud, misappropriation, embezzlement or any other act or acts of dishonesty
resulting or intended to result directly or indirectly in a gain or personal enrichment to the
Executive at the expense of the Company;
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(iv) willful material breach of any written policies of the Company (which policy or policies
previously was provided to Executive); or
(v) willful and continual failure to substantially perform his or her duties with the Company
(other than a failure resulting from his or her incapacity due to physical or mental illness),
which failure has continued for a period of at least 30 days after a written demand for substantial
performance is delivered to Executive by the Company which specifically identifies the manner in
which the Company believes that Executive has not substantially performed Executive’s duties.
(b) Change in Control means the occurrence of any of the
following events:
(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or more of the total
voting power represented by the Company’s then outstanding voting securities; or
(ii) The consummation of the sale or disposition by the Company of all or substantially all of
the Company’s assets; or
(iii) A change in the composition of the Board occurring within a two-year period, as a result
of which fewer than a majority of the directors are Incumbent Directors. “Incumbent Directors”
means directors who either (A) are Directors as of the Effective Date, or (B) are elected, or
nominated for election, to the Board with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or nomination (but will not include an individual
whose election or nomination is in connection with an actual or threatened proxy contest relating
to the election of directors to the Company); or
(iv) The consummation of a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity or its parent) at least fifty
percent (50%) of the total voting power represented by the voting securities of the Company or such
surviving entity or its parent outstanding immediately after such merger or consolidation.
(c) Good Reason. For the purposes of this Agreement, “Good Reason” means without the
Executive’s prior written consent,
(i) A significant reduction of Executive’s duties, position, or responsibilities, relative to
Executive’s duties, position, or responsibilities in effect immediately prior to the Change in
Control;
(ii) A reduction in the kind or level of employee benefits to which Executive is entitled
immediately prior to the Change in Control;
(iii) A reduction in Executive’s base salary or annual cash incentive as in effect immediately
prior to the Change in Control; or
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(iv) The relocation of Executive’s place of employment to a facility or location more than
thirty-five (35) miles from his current place of employment.
7. Assignment. This Agreement will be binding upon and inure to the benefit of (a)
the heirs, executors and legal representatives of Executive upon Executive’s death and (b) any
successor of the Company. Any such successor of the Company will be deemed substituted for the
Company under the terms of this Agreement for all purposes. For this purpose, “successor” means
any person, firm, corporation or other business entity which at any time, whether by purchase,
merger or otherwise, directly or indirectly acquires all or substantially all of the assets or
business of the Company. None of the rights of Executive to receive any form of compensation
payable pursuant to this Agreement may be assigned or transferred except by will or the laws of
descent and distribution. Any other attempted assignment, transfer, conveyance or other
disposition of Executive’s right to compensation or other benefits will be null and void.
8. Notices. All notices, requests, demands and other communications called for
hereunder will be in writing and will be deemed given (i) on the date of delivery if delivered
personally, (ii) one (1) day after being sent by a well-established commercial overnight service,
or (iii) four (4) days after being mailed by registered or certified mail, return receipt
requested, prepaid and addressed to the parties or their successors at the following addresses, or
at such other addresses as the parties may later designate in writing:
If to the Company:
The Go Daddy Group, Inc.
Attn: Legal Department
00000 X. Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Legal Department
00000 X. Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
If to Executive:
at the last residential address known by the Company.
9. Severability. In the event that any provision hereof becomes or is declared by a
court of competent jurisdiction to be illegal, unenforceable or void, this Agreement will continue
in full force and effect without said provision.
10. Arbitration.
(a) Dispute Resolution.
(i) 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 the 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 Section 10, 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 this Section 10. The demand shall set forth with reasonable specificity the
basis
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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.
(ii) 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 BREACH OF CONTRACT OR POLICY, OR ALLEGED EMPLOYMENT TORT
COMMITTED BY THE COMPANY OR A REPRESENTATIVE OF THE COMPANY, INCLUDING CLAIMS OF VIOLATIONS OF
FEDERAL OR STATE DISCRIMINATION STATUTES OR PUBLIC POLICY, SHALL BE RESOLVED PURSUANT TO THIS
SECTION 10 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.
(b) Remedy. Except as provided by this Agreement and by the Rules, including any
provisional relief offered therein, arbitration will be the sole, exclusive and final remedy for
any dispute between Executive and the Company. Accordingly, except as provided for by the Rules
and this Agreement, neither Executive nor the Company will be permitted to pursue court action
regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have
the authority to disregard or refuse to enforce any lawful Company policy, and the arbitrator will
not order or require the Company to adopt a policy not otherwise required by law which the Company
has not adopted.
(c) Administrative Relief. Executive understands that this Agreement does not
prohibit him from pursuing an administrative claim with a local, state or federal administrative
body such as the Department of Fair Employment and Housing, the Equal Employment Opportunity
Commission or the workers’ compensation board. This Agreement does, however, preclude Executive
from pursuing court action regarding any such claim.
(d) Voluntary Nature of Agreement. Executive acknowledges and agrees that Executive
is executing this Agreement voluntarily and without any duress or undue influence by the Company or
anyone else. Executive further acknowledges and agrees that Executive has carefully read this
Agreement and that Executive has asked any questions needed for Executive to understand the terms,
consequences and binding effect of this Agreement and fully understands it, including that
Executive is waiving Executive’s right to a jury trial. Finally, Executive agrees that Executive
has been provided an opportunity to seek the advice of an attorney of Executive’s choice before
signing this Agreement.
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11. Integration. This Agreement, together with the Prior Change in Control Agreement
represents the entire agreement and understanding between the parties as to the subject matter
herein and supersedes all prior or contemporaneous agreements whether written or oral. This
Agreement may be modified only by agreement of the parties by a written instrument executed by the
parties that is designated as an amendment to this Agreement.
12. Waiver of Breach. The waiver of a breach of any term or provision of this
Agreement, which must be in writing, will not operate as or be construed to be a waiver of any
other previous or subsequent breach of this Agreement.
13. Headings. All captions and section headings used in this Agreement are for
convenient reference only and do not form a part of this Agreement.
14. Tax Withholding. All payments made pursuant to this Agreement will be subject to
withholding of applicable taxes.
15. Governing Law. This Agreement will be governed by the laws of the State of
Arizona (with the exception of its conflict of laws provisions).
16. Acknowledgment. Executive acknowledges that he has had the opportunity to discuss
this matter with and obtain advice from his private attorney, has had sufficient time to, and has
carefully read and fully understands all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement.
17. Counterparts. This Agreement may be executed in counterparts, and each
counterpart will have the same force and effect as an original and will constitute an effective,
binding agreement on the part of each of the undersigned.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by their duly authorized officers, as of the day and year first above written.
COMPANY:
By:
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CHANGE IN CONTROL AGREEMENT
CHANGE IN CONTROL AGREEMENT
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