This AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated and effective as of January 31, 2011, by and between SolarWinds, Inc., a Delaware, United States Corporation (as successor to Solarwinds.net, Inc.) (SolarWinds) and its subsidiaries, SolarWinds Worldwide, LLC (SW LLC) and SolarWinds Australia Pty Ltd, an Australian Company (the Company), and Douglas Hibberd (the Employee).
WHEREAS, SolarWinds desires to assign and transfer Employee to its subsidiary, the Company;
WHEREAS, Employee consents to such assignment and transfer to the Company;
WHEREAS, the Parties agree that this Agreement hereby supersedes any other employment agreements or understandings (with the exception of the Employee Proprietary Information Agreement (EPIA) entered into by Employee and SolarWinds.net, Inc. on August 8, 2006 or any stock agreements between the SolarWinds, Inc. and Employee), written or oral, between the Company and Employee, including but not limited to, the Employment Agreement between the Companys Parent SolarWinds and Employee that was effective as of August 7, 2006 (the Prior Agreement).
IN CONSIDERATION of the premises and the mutual covenants set forth below, the parties hereby agree as follows:
1. Position and Duties.
(a) Effective January 31, 2011 (the Effective Date), the Employee will be employed by the Company, on a full-time basis, as its General Manager, Asia Pacific and Senior Vice President, Engineering. The Employee shall report to Kevin Thompson, Chief Executive Officer of SolarWinds, 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 Employees 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 Employees business time and efforts to the advancement of the business and interests of the Company and its affiliates and to the discharge of Employees 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 Employees duties and responsibilities hereunder to; (i) manage Employees 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 Employees duties at the Company.
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2. Compensation and Benefits. During Employees employment, as compensation for all services performed by the Employee for the Company and its affiliates, 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 Two Hundred Seventy Thousand Dollars (AUS$270,000) per year (Base Salary), payable in accordance with the regular payroll practices of the Company and and shall be reviewed annually and shall be subject to change from time to time by the Company in its discretion.
(b) Superannuation. In addition to the Base Salary, the Company will pay into a complying superannuation fund nominated by the Employee in accordance with the Superannuation Guarantee Legislation.
(c) Incentive Compensation. During employment, the Employee shall be eligible to receive the Company bonus, paid on a prorated quarterly basis, targeted at AUS$140,000, annually, based on the attainment of certain Company targets and individual performance objectives as approved the Company Board of Directors. All payments under this section 2(b) will be made in accordance with the regular payroll practices of the Company.
(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 Employees 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 Employees 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.
3. Company Policies. The Company may issue policies from time to time in relation to your employment. These policies do not form part of this agreement or give rise to any contractual rights. The Company may vary or not apply these policies at its discretion. To the extent these policies require the Employee do any thing or refrain from doing any thing, these policies constitute directions from the Company to the Employee with which the Employee must comply.
4. Confidential Information and Restricted Activities.
(a) Confidential Information. During the course of the Employees 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 Employees regular duties and responsibilities for the Company) any Confidential Information obtained by the Employee incident to the Employees employment or any other association with the Company or any of its affiliates. The Employee understands that this restriction shall continue to apply after the Employees employment terminates, regardless of the reason for such termination.
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(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 affiliates, 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 Employees employment terminates or at such earlier time or times as the Board or its designee may specify, all Documents then in the Employees possession or control.
(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 Employees employment. Therefore, the Employee agrees that the following restrictions on the Employees activities during and after the Employees 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 and for the Restraint Period after the employment terminates, however occuring, the Employee shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise (collectively, a Competitive Role), anywhere within the Restraint Area, actively compete with the Company or any of its subsidiaries or undertake any planning for any business that is Competitive (as defined in the EPIA ) with the Company or its subsidiaries. Each of the restraint obligations imposed on the Employee resulting from the combinations of Restraint Periods and Restraint Areas, is a separate and independent obligation from the other restraint obligations imposed, but they are cumulative in effect and the parties intend that they operate to the maximum extent.
(ii) The Employee agrees that during the twelve (12) months immediately following termination of the Employees employment, 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 4. 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 4, 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
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that any provision of this Section 4 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 Companys subsidiaries shall have the right to enforce all of the Employees obligations to that subsidiary under this Agreement, including without limitation, pursuant to this Section 4.
5. Termination of Employment. The Employees employment under this Agreement shall continue until terminated pursuant to this Section 5.
(a) The Company may terminate the Employees employment for Cause without 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 Employees continued substantial violations of Employees 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 Companys belief that Employee has not substantially performed Employees duties or willfully disregarded directives from the Managing Executive; (ii) the Employees moral turpitude, dishonesty or gross misconduct in the performance of Employees duties or which has materially and demonstrably injured the finances or future business of the Company or any of its affiliates as a whole; (iii) the Employees material breach of this Agreement; or (iv) the Employees 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 Companys property; provided, however, that no such act or event described in clause (iii) of this paragraph (a) shall constitute Cause hereunder if the Employee has fully cured such act or event within fifteen (15) days of receiving written notice requiring him to do so.
(b) This Agreement shall automatically terminate in the event of Employees death during employment. No severance pay or other separation benefits will be paid in the event of such termination due to death except that Employees 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 Employees 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 (collectively Accrued Compensation). In the event the Employee becomes disabled during employment and, as a result, is unable to continue to perform substantially all of Employees 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 Employees 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 Employees duties and responsibilities for the Company, the Employee shall, at the Companys request, and at the Companys expense, submit to a medical examination by a physician selected by the Company to whom the Employees guardian, if any, has no reasonable objection to determine whether the
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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 Companys determination of the issue shall be binding on the Employee.
(c) Either the Company or Employee may terminate Employees employment by giving 15 days written notice. The Company may make payment to the Employee of Base Salary and superannuation in lieu of notice. Subject to the Employee signing a release of claims in the form provided by the Company and reasonably acceptable to Employee, in the event the Company terminates the Employee pursuant to this clause 5(c), the Employee shall be entitled to receive: (i) a lump sum cash severance amount equivalent to six (6) months of Employees then current annual base salary (the Severance Payments), less any payment of base salary in lieu of notice and less any applicable deductions; (ii) any earned but unpaid incentive compensation payments; (iii) all accrued but untaken annual or other leave payments required at law to be paid to the Employee on termination.
(d) In the event of termination of the Employees employment by the Company for Cause or the Employees 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 Employees 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, 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 Employees 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 Companys Australian headquarters in Brisbane, Australia 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.
(f) 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 Employees obligations under Section 4 of this Agreement, with the exception of Section 4(c)(i), which obligations do not survive termination. The obligation of the Company to make payments to the Employee under this Section 5 is expressly conditioned upon the Employees continued full performance of the obligations under Section 4 hereof that survive the termination of Employees employment. Upon termination by either the Employee or the
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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.
6. Change of Control Benefits. Change of Control shall be defined as a transaction or series of transactions where the shareholders of the SolarWinds immediately preceding such transaction own, following such transaction, less than 50% of the voting securities of SolarWinds; 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 Employees employment by SolarWinds other than for Cause or in the event of Constructive Termination, upon or during the twelve (12) month period after the effective date of a Change of Control, all of Employees remaining unvested stock options from all of Employees 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 section 5(c) hereof.
7. Indemnification and Insurance. The Company and Employee will enter into an Indemnification Agreement for Employees Benefit as approved by the Companys 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 Companys Director and Officer Insurance Policy.
8. 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 affiliates, anything marked confidential or which is of a commercially sensitive nature, including information reasonably to be regarded as confidential from its nature and content. Confidential Information does not include information that enters the public domain, other than through the Employees breach of the Employees 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.
Restraint Area means:
b. New South Wales;
c. Australian Capital Territory;
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f. South Australia;
g. Western Australia,
h. Northern Territory;
Restraint Period means:
6 months after termination of employment.
9. Conflicting Agreements. The Employee hereby represents and warrants that the Employees signing of this Agreement and the performance of the Employees 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 Employees obligations under this Agreement.
10. 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.
11. 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.
12. 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.
13. Miscellaneous. This Agreement and the Employee Proprietary Information Agreement (EPIA) executed by the Parties on August 8, 2006, set 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 Employees employment. In the event of a conflict between the EPIA and this Agreement, the terms in this EPIA shall prevail. 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
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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.
14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of Queensland, Australia.
15. 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 Employees 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 AUSTRALIA, PTY|
|Name: Bryan A. Sims|
|Name: Kevin B. Thompson|
|Title: President and Chief Executive Officer|
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