Exhibit
10.1
SEPARATION
AGREEMENT
This Agreement is
made as of the 21 st day of January, 2009 by and between
Universal Power Group, Inc., a Texas corporation (the
“Company”) having a principal place of business at 1720
Hayden Drive Carrollton, Texas and Randy Hardin, residing at 370
Town East Blvd., Sunnydale, Texas 75182
(“Hardin”).
WHEREAS,
Hardin
is a member of the Board of Directors of the Company (the
“Board”); and
WHEREAS
,
Hardin and the Company are parties to an Employment Agreement dated
as of December 20, 2006 (the “Employment Agreement”);
and
WHEREAS,
the
parties have agreed to settle all matters relating to the cessation
of Hardin’s employment with the Company and service as a
Member of the Board.
NOW,
THEREFORE , the parties agree
as follows:
1.
Hardin hereby resigns as a member of
the Board.
2.
The Parties agree that the Employment
Agreement is hereby terminated as of the date hereof (the
“Termination Date”)
3.
In consideration for Hardin’s
agreement to terminate the Employment Agreement and for
Hardin’s execution of this Agreement the Company shall,
during the Restricted Period (as defined below):
(a)
continue to pay to Hardin his annual base salary of $242,000 per
year (less any applicable federal, state and local withholding
taxes) in accordance with the Company’s regular payroll
practices; and
(b) make
available to Hardin as required by the continuation of coverage
provisions described in Section 4980B of the Internal Revenue Code
and Sections 601 through
625 of ERISA (the
“Continuation Coverage”), the healthcare coverage which
is currently provided to Hardin for which Hardin shall contribute
to the payment therefor, the same monthly amount which was being
withheld from his salary prior to the termination of the Employment
Agreement. To the extent such Continuation Coverage is not
available throughout the Restricted Period, the Company shall
reimburse Hardin, that same monthly amount that was being withheld
from his salary immediately prior to the termination of his
Employment Agreement.
4.
In consideration of the payments to
be made to Hardin as provided in Section 3:
(a)
Covenant Against Competition . Hardin acknowledges that, as
of the date of execution of this Agreement: (i) the Company is,
engaged in (A) the distribution of batteries and other portable
power supply products and accessories and (B) providing third party
logistics services (the “Business”); (ii) his
employment with the Company has given him access to confidential
information concerning the Business as so conducted; and (iii) the
agreements and covenants contained in this Agreement are essential
to protect the business and goodwill of the Company. Accordingly,
Hardin covenants and agrees that, he shall not during the
Restricted Period and within the Restricted Area (each as defined
below): (A) engage or participate in the Business; (B) enter the
employ of, or render any services (whether or not for a fee or
other compensation) to, any person or entity engaged in the
Business; or (C) acquire an equity interest in any person engaged
in the Business; provided, that during the Restricted Period Hardin
may own, directly or indirectly, solely as a passive investment,
not more than three (3%) percent of the outstanding securities of
any company traded on any national securities exchange or on the
National Association of Securities Dealers Automated Quotation
System.
As used
herein:
2
(i)
“ Restricted Period ” shall mean the period
commencing on the date hereof and ending on January
21, 2011.
(ii)
“ Restricted Area ” shall mean any place within
the United States and any other country in which the Company is
currently conducting or soliciting Business or has conducted or
solicited Business during the twelve month period preceding the
date hereof;
(b)
Confidential Information; Personal Relationships . Hardin
acknowledges that the Company has a legitimate and continuing
proprietary interest in the protection of its confidential
information
