Employment Agreement



 Exhibit 10.1 
 EMPLOYMENT AGREEMENT 
 This AGREEMENT, dated and
effective as of February 8, 2010, by and between SolarWinds Worldwide, LLC, a Delaware Limited Liability Company (the “Company”), and Michael Berry (the “Employee”). 
 IN CONSIDERATION of the premises and the mutual covenants set forth below, the parties hereby agree as follows: 
 1. Position and Duties. 
 (a) Effective February 16, 2010 (the “Effective Date”), the Employee will be employed by the Company, on a full-time basis, and effective March 1, 2010 shall serve as its Senior
Vice President and Chief Financial Officer. The Employee shall report to the Company’s Chief Executive Officer, or such other executive as designated by the CEO or any other member of the management team to which the Employee reports
(hereinafter referred to as the “Managing Executive”). 
 (b) The Employee agrees to perform the duties of
Employee’s position and such other duties as may reasonably be assigned to the Employee from time to time. The Employee also agrees that, while employed by the Company, the Employee will devote substantially all of Employee’s business time
and efforts to the advancement of the business and interests of the Company and its subsidiaries and to the discharge of Employee’s duties and responsibilities for them. Notwithstanding the above, the Employee shall be permitted, to the extent
such activities do not in the aggregate materially interfere with the performance by the Employee of Employee’s duties and responsibilities hereunder to; (i) manage Employee’s personal, financial and legal affairs; and (ii) serve
on civic, educational, philanthropic or charitable boards or committees ; and (iii) serve on any other corporate board or committee as long as such board or committee is disclosed to the Company and does not cause a conflict of interest with
Employee’s duties at the Company. 
 2. Compensation and Benefits. During Employee’s employment, as
compensation for all services performed by the Employee for the Company and its subsidiaries, the Company will provide the Employee the following pay and benefits: 
 (a) Base Salary. The Company will pay Employee a base salary at the rate of Three Hundred Twenty Five Thousand Dollars ($325,000) per year (“Base Salary”), payable in accordance with the
regular payroll practices of the Company and shall be reviewed annually and shall be subject to increase from time to time by the Company in its discretion. 
 (b) Bonus Compensation. During employment, the Employee shall be eligible for a bonus, paid on a quarterly basis, targeted at $200,000 annually based on the attainment of certain quarterly
corporate and individual performance objectives mutually agreed upon in advance by the Employee and the Managing Executive. All payments under this section 2(b) will be made in accordance with the regular payroll practices of the Company, but in no
event after March 15 following the calendar year in which the bonus is earned. 
  

 1 








 (c) Stock Options. At the first meeting of the Board following the Effective
Date, it will be recommended that the Company grant the Employee an option to purchase 300,000 shares of common stock of the Company, at an exercise price equal to the Fair Market Value (as such term is defined in the Company’s Stock Plan) on
the date of grant. The terms of the options are set out in the Company’s Stock Option Plan. Employee will have twelve (12) months from the date of termination of his employment for any reason to exercise any vested stock options, but in no
event later than the expiration of the term of the option. 
 (d) Participation in Employee Benefit Plans and Vacation
Policies. The Employee will be entitled to participate in all employee benefit plans and vacation policies in effect for employees of the Company. The Employee’s participation will be subject to the terms of the applicable plan documents
and generally applicable Company policies. 
 (e) Business Expenses. The Company will pay or reimburse the Employee for
all reasonable business expenses incurred or paid by the Employee in the performance of Employee’s duties and responsibilities for the Company. Reimbursements shall be subject to such reasonable substantiation and documentation as the Company
may specify from time to time. 
 (f) Relocation Expenses. The Company will pay the Employee a relocation bonus of
$100,000, less applicable withholdings, upon the Employee’s establishment of permanent residency in Austin, Texas, subject to the Employee’s continued employment with the Company on the payment date. This relocation bonus is intended to
offset certain costs expected to be incurred by the Employee in the Employee’s move from Dallas, Texas to Austin, Texas. In the event the Employee voluntarily leaves Employment with the Company prior to 12 months (other than as a result of an
event of Change of Control) from the date of the Employee’s relocation to Austin, Texas, the Employee will repay a pro rata portion of the relocation bonus. The Company will also allow the Employee to use the Company’s corporate apartment
in Austin, Texas for the duration of Employee’s employment by the Company beginning on the Effective Date and ending on August 1, 2010, the date by which Employee shall establish permanent residency in Austin, Texas. 
 3. Confidential Information and Restricted Activities. 
 (a) Confidential Information. During the course of the Employee’s employment with the Company, the Company agrees to provide the Employee with Confidential Information, as defined below, and
the Employee may develop Confidential Information on behalf of the Company. The Employee agrees that Employee will not use or disclose to any Person (except as required by applicable law or for the proper performance of the Employee’s regular
duties and responsibilities for the Company) any Confidential Information obtained by the Employee incident to the Employee’s employment or any other association with the Company or any of its subsidiaries. The Employee understands that this
restriction shall continue to apply after the Employee’s employment terminates, regardless of the reason for such termination. 
 (b) Protection of Documents. All material documents, records, software and files, in any media of whatever kind and description, relating to the business of the Company and its subsidiaries, and any copies, in whole or in part,
thereof (the “Documents”), whether or not prepared by the Employee shall be the sole and exclusive property of the Company. The Employee agrees to safeguard all Documents and to surrender to the Company, at the time the Employee’s
employment terminates or at such earlier time or times as the Board or its designee may specify, all Documents then in the Employee’s possession or control. 
  

 2 








 (c) Non-Competition. The Company agrees to provide Employee with Confidential
Information which, if disclosed, would assist in competition against the Company and that the Employee will also generate goodwill for the Company in the course of the Employee’s employment. Therefore, the Employee agrees that the following
restrictions on the Employee’s activities during and after the Employee’s employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company: 
 (i) While the Employee is employed by the Company the Employee shall not, directly or indirectly, whether as owner, partner, investor,
consultant, agent, employee, co-venturer or otherwise (collectively, a “Competitive Role”), actively compete with the Company or any of its subsidiaries or undertake any planning for any business that is Competitive (as defined in the
Company’s in the Company’s Proprietary Invention Agreement) with the Company or its subsidiaries. 
 (ii) The
Employee agrees that during the twelve (12) months immediately following Employee’s resignation of employment or during six (6) months following an involuntary termination of the Employee’s employment without Cause, the Employee
will not, directly or through any other Person, (A) hire any employee of the Company or any of its subsidiaries or seek to persuade any employee of the Company or any of its subsidiaries to discontinue employment, (B) solicit or encourage
any customer of the Company or any of its subsidiaries or independent contractor providing services to the Company or any of its subsidiaries to terminate or diminish its relationship with them or (C) seek to persuade any customer or active
prospective customer of the Company or any of its subsidiaries to conduct with anyone else any business or activity that such customer or prospective customer conducts or could reasonably be expected to conduct with the Company or any of its
subsidiaries at that time. 
 (d) In signing this Agreement, the Employee gives the Company assurance that the Employee has
carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed on the Employee under this Section 3. The Employee agrees without reservation that these restraints are necessary for the reasonable
and proper protection of the Company and its subsidiaries and that each and every one of the restraints is reasonable in respect to subject matter, length of time and geographic area. The Employee further agrees that, were the Employee to breach any
of the covenants contained in this Section 3, the damage to the Company and its subsidiaries would be irreparable. The Employee agrees that the Company, in addition to any other remedies available to it, shall be entitled to apply for
injunctive relief in a court of appropriate jurisdiction. The Employee and the Company further agree that, in the event that any provision of this Section 3 is determined by any court of competent jurisdiction to be unenforceable by reason of
its being extended over too great a time, too large a geographic area or too great a range of activities, the court may modify and enforce the covenant to the extent it believes to be reasonable under the circumstances. It is also agreed that each
of the Company’s subsidiaries shall have the right to enforce all of the Employee’s obligations to that subsidiary under this Agreement, including without limitation pursuant to this Section 3. 
  

 3 








 4. Termination of Employment. The Employee’s employment under this
Agreement shall continue until terminated pursuant to this Section 4. 
 (a) The Company may terminate the Employee’s
employment for Cause following at least thirty (30) days advance written notice to the Employee setting forth in reasonable detail the nature of the Cause. For purposes of this Agreement, “Cause” means any of the following:
(i) the Employee’s continued substantial violations of Employee’s employment duties or willful disregard of commercially reasonable and lawful directives from the Managing Executive, after Employee has received a written demand for
performance from the Managing Executive that sets forth the factual basis for the Company’s belief that Employee has not substantially performed Employee’s duties or willfully disregarded directives from the Managing Executive;
(ii) the Employee’s moral turpitude, dishonesty or gross misconduct in the performance of Employee’s duties or which has materially and demonstrably injured the finances or future business of the Company or any of its subsidiaries as
a whole; (iii) the Employee’s material breach of this Agreement; or (iv) the Employee’s conviction of, or confession or plea of no contest to, any felony or any other act of fraud, misappropriation, embezzlement, or the like
involving the Company’s property; provided, however, that no such act or event described in clauses (i) and (iii) of this paragraph (a) shall constitute Cause hereunder if the Employee has fully cured such act or event during the
applicable thirty (30) day notice period. 
 (b) This Agreement shall automatically terminate in the event of
Employee’s death during employment. No severance pay or other separation benefits will be paid in the event of such termination due to death except that Employee’s beneficiaries shall be entitled to receive any accrued Base Salary, any
bonus compensation to the extent earned, any vested deferred compensation or Stock Options (other than pension plan or profit-sharing plan benefits which will be paid in accordance with the applicable plan), any benefits under any plans of the
Company in which Employee is a participant to the full extent of Employee’s rights under such plans, any accrued vacation pay and any appropriate business expenses incurred by Employee in connection with his duties hereunder, all to the date of
termination. In the event the Employee becomes disabled during employment and, as a result, is unable to continue to perform substantially all of Employee’s duties and responsibilities under this Agreement for a consecutive period of twelve
(12) weeks, the Company will continue to pay the Base Salary to Employee and benefits in accordance with Section 2(d) above during such period. If the Employee is unable to return to work after twelve (12) consecutive weeks of
disability, the Company may terminate the Employee’s employment, upon notice to the Employee. No severance pay or other separation benefits will be paid in the event of such termination due to disability. If any question shall arise as to
whether the Employee is disabled to the extent that the Employee is unable to perform substantially all of Employee’s duties and responsibilities for the Company, the Employee shall, at the Company’s request, and at the Company’s
expense, submit to a medical examination by a physician selected by the Company to whom the Employee’s guardian, if any, has no reasonable objection to determine whether the Employee is so disabled and such determination shall for the purposes
of this Agreement be conclusive of the issue. If such a question arises and the Employee fails to submit to the requested medical examination, the Company’s determination of the issue shall be binding on the Employee. 
  

 4 








 (c) Either the Company or Employee may terminate Employee’s employment “at
will,” for any reason, at any time, without cause or notice. However, provided that Employee has been employed for at least ninety (90) days at the time of such termination, in the event of termination of the Employee’s employment by
the Company other than for Cause or in the event of a Constructive Termination, the Employee shall be entitled to receive: (i) a lump sum cash severance amount equivalent to twelve (12) months of Employee’s then current annual salary,
less applicable deductions, to be paid within sixty (60) days from the Employee’s termination of employment or such later time required by this Agreement; (ii) any earned but unpaid bonus payment; (iii) reimbursement of the
health and dental care continuation premiums for Employee and Employee’s dependents incurred by Employee (after taking into account any available government subsidy for such payments) to effect continuation of health and dental insurance
coverage for Employee and Employee’s dependents on the same basis as active employees, for a period of twelve (12) months from the date of such termination, to the extent that Employee is eligible for and elects continuation coverage under
COBRA; and (iv) any accrued and unused vacation pay payable within twenty one (21) calendar days of the termination date (subject to required withholding). Any obligation of the Company to provide the Employee severance payments under this
Section 4(c) is conditioned, however, upon the Employee signing and not revoking a release of claims in the form provided by the Company and reasonably acceptable to Employee that becomes effective no later than seventy-four (74) days
following the Employee’s termination date or such earlier date required by the release agreement (such deadline, the “Release Deadline”). If the release does not become effective by the Release Deadline, the Employee will forfeit any
rights to severance payments under this Section 4(c). In no event will severance payments or benefits be paid or provided until the release actually becomes effective. In the event the termination occurs at a time during the calendar year where
the release could become effective in the calendar year following the calendar year in which the Employee’s termination occurs, then any severance payments or benefits under this Agreement that would be considered Deferred Compensation (as
defined below) will be paid or provided on the first payroll date to occur during the calendar year following the calendar year in which such termination occurs, or, if later, the later of (i) the Release Deadline, or (ii) the Deferred
Compensation Delayed Payment Date (as defined in Section 7 below). 
 (d) In the event of termination of the
Employee’s employment by the Company for Cause or the Employee’s voluntary resignation, the Company will pay the Employee any Base Salary earned but not paid through the date of termination, any earned but unpaid bonus, and pay for any
vacation time accrued but not used to that date. The Company shall have no obligation to the Employee for unearned bonus or severance payments. 
 (e) In the event that the Company, without Employee’s express written consent, shall materially reduce the powers and duties of employment of Employee resulting in a material decrease in the
responsibilities of Employee, materially reduce the pay of Employee (for these purposes a reduction of Executive’s base compensation by 10% or less will not be considered material), fail to provide directors and officers liability insurance
covering Employee during the term of his employment (which failure would be a material breach of this agreement) or require a material change in the geographic location of Employee’s primary work facility or location, and due to such act or
event Employee terminates his employment with the Company within thirty (30) days following the expiration of any Company cure period (discussed below) following the occurrence of one or more of such acts or events, such termination by Employee
shall be deemed to be a “Constructive Termination”; provided, however, that a relocation of less than fifty (50) miles from the Company’s corporate headquarters in Austin, Texas will not be considered a material change in
geographic location and thus a termination by Employee for this reason shall not be construed as a Constructive Termination; and provided further, that Employee may not resign for Constructive Termination unless Employee first provides the
Company with written notice of the acts or events constituting the grounds for “Constructive Termination” within ninety (90) days of the initial existence of the grounds for “Constructive Termination” and a reasonable cure
period of not less than thirty (30) days following the date of such notice, and such grounds for “Constructive Termination” have not been cured during such cure period. 
  

 5 








 (f) Except for any right the Employee may have under the federal law known as
“COBRA” to continue participation in the Company’s group health and dental plans, and subject to Section 4(c)(iii) above, benefits shall terminate in accordance with the terms of the applicable benefit plans based on the date of
termination of the Employee’s employment, without regard to any continuation of base salary or other payment to the Employee following termination. 
 (g) Provisions of this Agreement shall survive any termination if so provided in this Agreement or if necessary to accomplish the purposes of other surviving provisions, including without limitation the
Employee’s obligations under Section 3 of this Agreement, with the exception of Section 3(c)(i), which obligations do not survive termination. The obligation of the Company to make payments to the Employee under this Section 4 is
expressly conditioned upon the Employee’s continued full performance of the obligations under Section 3 hereof that survive the termination of Employee’s employment. Upon termination by either the Employee or the Company, all rights,
duties and obligations of the Employee and the Company to each other shall cease, except as otherwise expressly provided in this Agreement. 
 5. Change of Control Benefits. “Change of Control” shall be defined as a transaction or series of transactions where the shareholders of the Company immediately preceding such transaction
own, following such transaction, less than 50% of the voting securities of the Company. Provided however, that a firmly underwritten public offering of the Common Stock shall not be deemed a Change of Control. In the event of termination of
the Employee’s employment by the Company other than for Cause or in the event of a Constructive Termination, in each case upon or during the twelve (12) month period after the effective date of a Change of Control, all of Employee’s
remaining unvested shares from all of Employee’s then-outstanding option grants shall immediately and fully vest as of the date of such termination, and the Employee shall receive the consideration set forth in sections 4(c) and 4(d) hereof.

 6. Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or
otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 6, would be
subject to the excise tax imposed by Code Section 4999 (the “Excise Tax”), then the Employee’s severance benefits will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no
portion of such severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Employee on an
after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Code Section 4999. If a reduction in the severance and other benefits constituting
“parachute payments” is necessary so that no portion of such severance benefits is subject to the Excise Tax, the reduction shall occur in the following order: (1) reduction of the cash severance payments; (2) cancellation of
accelerated vesting of the Employee’s equity awards; and (3) reduction of continued employee benefits. In the event that acceleration of vesting of the Employee’s equity awards is to be reduced, such acceleration of vesting shall be
cancelled in the reverse order of the date of grant of the Employee’s equity awards. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 6 will be made in writing by an independent
firm selected by the Company with the consent of Employee, which consent shall not be unreasonably withheld, delayed or conditioned (the “Firm”), immediately prior to the change of control, whose determination will be conclusive and
binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 6, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable,
good faith interpretations concerning the application of Code Sections 280G and 4999. The Company and the Employee will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this
Section 6. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 6. 
  

 6 








 7. Section 409A. The foregoing provisions are intended to comply with the
requirements of Code Section 409A and the final regulations and official guidance promulgated thereunder (“Section 409A”) so that none of the payments and benefits to be provided hereunder will be subject to the additional penalty tax
imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company agrees to work together with the Employee in good faith to consider any and all amendments to this Agreement and to take such reasonable
actions which are necessary, appropriate or desirable to avoid imposition of any additional tax, interest penalty or accelerated income recognition prior to actual payment to the Employee under Section 409A. Notwithstanding anything to the
contrary in this Agreement, no severance payments or severance benefits payable to the Employee upon termination of employment, if any, when considered together with any other severance payments or separation benefits that are considered deferred
compensation under Section 409A (“Deferred Compensation”) will be payable until the Employee has a “separation from service” within the meaning of Section 409A. Further, if at the time of the Employee’s termination
of employment, the Employee is a “specified employee” within the meaning of Section 409A, payment of such Deferred Compensation will be delayed to the extent necessary to avoid the imposition of the additional tax imposed under
Section 409A, which generally means that the Employee will receive payment on the first payroll date that occurs on or after the date that is six (6) months and one (1) day following the Employee’s termination of employment, or
the Employee’s death, if earlier (the “Deferred Compensation Delayed Payment Date”). 
 8. Indemnification and
Insurance. The Company and Employee will enter into a Indemnification Agreement for Employee’s Benefit as approved by the Company’s Board of Directors and will maintain Director and Officers liability insurance for Employee during his
Employment and for a reasonable time thereafter as permitted by the Company’s Director and Officer Insurance Policy. 
  

 7 








 9. Definitions. For purposes of this Agreement, the following definitions
apply: 
 “Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under
common control with the Company, where control may be by management authority, equity interest or otherwise. 
 “Confidential Information” means matters relating to the financial condition, results of operations, business, properties, assets, liabilities or future prospects of the Company and its subsidiaries. Confidential Information does
not include information that enters the public domain, other than through the Employee’s breach of the Employee’s obligations under this Agreement. 
 “Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust or any other entity or organization, other than the Company or any of
its Affiliates. 
 10. Conflicting Agreements. The Employee hereby represents and warrants that the
Employee’s signing of this Agreement and the performance of the Employee’s obligations under it will not breach or be in conflict with any other agreement to which the Employee is a party or are bound and that the Employee is not now
subject to any covenants against competition or similar covenants or any court order that could affect the performance of the Employee’s obligations under this Agreement. 
 11. Withholding. All payments made by the Company under this Agreement shall be reduced by any tax or other amounts required
to be withheld by the Company under applicable law. 
 12. Assignment. Neither the Employee nor the Company may
make any assignment of this Agreement or any interest in it, by operation of law or otherwise, without the prior written consent of the other. This Agreement shall inure to the benefit of and be binding upon the Employee and the Company, and each of
our respective successors, executors, administrators, heirs and permitted assigns. 
 13. Severability. If any
portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than
those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 
 14. Miscellaneous. This Agreement sets forth the entire agreement between the Employee and the Company and replaces all prior
and contemporaneous communications, agreements and understandings, written or oral, with respect to the terms and conditions of the Employee’s employment. This Agreement may not be modified or amended, and no breach shall be deemed to be
waived, unless agreed to in writing by the Employee and an expressly authorized representative of the Board. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision
of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. 
  

 8 








 15. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Texas without regard to the conflict of laws principles thereof. 
 16.
Notices. Any notices provided for in this Agreement shall be in writing and shall be effective when delivered in person or deposited in the United States mail, postage prepaid, and addressed to the Company at its principal place of
business, attention of the General Counsel or in the case of the Employee, at the Employee’s last known address on the books of the Company (or to such other address as either party may specify by notice to the other actually received).

 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. 
  

							
	SOLARWINDS WORLDWIDE, LLC	 		 	
				
	By:	 	 /s/ Kevin B. Thompson
	 		 	 /s/ Michael J. Berry

	Name:	 	Kevin B. Thompson	 		 	Michael J. Berry
	Title:	 	President, COO & CFO	 		 	

  

 9