Exhibit 10.11
SEVERANCE AGREEMENT
SEVERANCE AGREEMENT (the "Agreement") dated _____________, ____
("Effective Date") between _____________ ("Employee") and Universal Technical
Institute, Inc., a Delaware corporation (the "Company").
WHEREAS, in order to accomplish its objectives, the Company believes it is
essential that certain of its executives, such as Employee, be encouraged to
remain with the Company during management transition and thereafter and in the
event there is any change in corporate structure which results in a Change in
Control.
WHEREAS, Employee wishes to have the protection provided for in this
Agreement and, in exchange for such protection, is willing to give to the
Company, under certain circumstances, a covenant not to compete.
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS.
a. "Board of Directors" means the Board of Directors of the Company.
b. "Business" means (a) ownership and operation of private
post-secondary educational institutions, the primary educational program
of which teaches motorcycle, marine, automotive, diesel, and collision
repair and refinishing technologies, or (b) any similar or incidental
business conducted, or engaged in, by the Company Group prior to the date
hereof or at any time during the Term.
c. "Cause" means any of the following:
(i) Employee's conviction of, or plea of guilty or nolo
contendere to, a felony or a crime involving embezzlement,
conversion of property or moral turpitude;
(ii) a finding by a majority of the Board of Directors of
Employee's fraud, embezzlement or conversion of the Company's
property;
(iii) Employee's conviction of, or plea of guilty or nolo
contendere to, a crime involving the acquisition, use or expenditure
of federal, state or local government funds or the unlawful use,
possession or sale of illegal substances;
(iv) an administrative or judicial determination that Employee
committed fraud or any other violation of law involving federal,
state or local government funds;
(v) a finding by a majority of the Board of Directors of
Employee's knowing breach of any of Employee's fiduciary duties to
any company in the Company Group or the Company's stockholders or
making of a misrepresentation or omission which breach,
misrepresentation or omission would reasonably be expected to
materially adversely affect the business, properties, assets,
condition (financial or other) or prospects of any company in the
Company Group;
(vi) Employee's neglect or failure to discharge the material
duties, responsibilities or obligations prescribed by this Agreement
or any other agreement between Employee and any company in the
Company Group;
(vii) Employee's alcohol or substance abuse, which materially
interferes with Employee's ability to discharge the duties,
responsibilities and obligations prescribed by this Agreement;
provided, that Employee has been given notice and 30 days from such
notice fails to cure such abuse;
(viii) Employee's personal (as opposed to the Company's)
material and knowing failure, to observe or comply with Regulations
whether as an officer, stockholder or otherwise, in any material
respect or in any manner which would reasonably be expected to have
a material adverse effect in respect of the Company Group's ongoing
business, operations, conditions, other business relationship or
properties.
d. "Change in Control" means: (i) any sale, lease, exchange, or
other transfer (in one transaction or series of related transactions) of
all or substantially all the Company's assets to any person or group of
related persons under Section 13(d) of the Exchange Act ("Group"); (ii)
the Company's shareholders approve and complete any plan or proposal for
the liquidation or dissolution of the Company; (iii) any person or Group
becomes the beneficial owner, directly or indirectly, of shares
representing more than 50% of the aggregate voting power of the issued and
outstanding stock entitled to vote in the election of directors of the
Company ("Voting Stock") and such person or Group has the power and
authority to vote such shares; (iv) any person or Group acquires
sufficient shares of Voting Stock to elect a majority of the members of
the Board; or (v) the completion of a merger or consolidation of the
Company with another entity in which holders of the Stock immediately
before the completion of the transaction hold, directly or indirectly,
immediately after the transaction, 50% or less of the common equity
interest in the surviving corporation in the transaction. Notwithstanding
the foregoing, in no event will a Change in Control be deemed to have
occurred as a result of an initial public offering of the Stock.
e. "Code" means the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder.
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f. "Company Group" shall mean the Company and the entities listed on
Schedule 1.
g. "Confidential Information" means any confidential information
including, without limitation, any study, data, calculations, software
storage media or other compilation of information, patent, patent
application, copyright, "know-how", trade secrets, customer lists, details
of client or consultant contracts, pricing policies, operational methods,
marketing plans or strategies, product development techniques or plans,
business acquisition plans or any portion or phase of any scientific or
technical information, ideas, discoveries, designs, computer programs
(including source of object codes), processes, procedures, formulae,
improvements or other proprietary or intellectual property of the Company
Group, whether or not in written or tangible form, and whether or not
registered, and including all files, records, manuals, books, catalogues,
memoranda, notes, summaries, plans, reports, records, documents and other
evidence thereof. Notwithstanding the foregoing, the term "Confidential
Information" does not include, and there shall be no obligation hereunder
with respect to, information that is or becomes generally available to the
public other than as a result of a disclosure by the Employee not
permissible hereunder.
h. "Good Reason," when used with reference to a voluntary
termination by Employee of Employee's employment with the Company, shall
mean (i) a material reduction in Employee's authority, perquisites,
position or responsibilities (other than such a reduction which affects
all of the Company's senior executives on a substantially equal or
proportionate basis), or (ii) a requirement that Employee relocate greater
than 50 miles from Employee's primary work location.
i. "Market" means any county in the United States of America and
each similar jurisdiction in any other country in which the Business was
conducted by or engaged in by the Company Group prior to the date hereof
or is conducted or engaged in by the Company Group at any time during the
Term.
j. "Regulations" means any laws, ordinances, regulations or rules of
any governmental, regulatory or administrative body, agent or authority,
any court or judicial authority, or any public, private or industry
regulatory authority.
k. "Term" means the period commencing on the Effective Date and
terminating three years after the Effective Date; provided, however, that
the Term shall automatically be extended for successive additional one
year periods unless either party to this Agreement provides the other
party with notice of termination of this Agreement at least six months
prior to the expiration of the original three-year period or any one-year
period thereafter.
l. "Termination Date" shall mean the effective date as provided
hereunder of the termination of Employee's employment.
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2. TERMINATION OF EMPLOYMENT WITHIN 12 MONTHS AFTER A CHANGE IN CONTROL
WHICH OCCURS DURING THE TERM.
a. Employee's employment may be terminated by the Company for Cause
at any time, effective upon the giving to Employee of written notice of
termination specifying in detail the particulars of the conduct of
Employee deemed by the Company to justify such termination for Cause.
b. Employee's employment may be terminated by the Company without
Cause at any time, effective upon the giving to Employee of a written
notice of termination specifying that such termination is without Cause.
c. Employee may terminate Employee's employment with the Company at
any time.
d. Upon a termination by the Company of Employee's employment for
Cause within 12 months after a Change in Control which occurs during the
Term, Employee shall be entitled only to the payments specified in Section
3.a. below. Upon a termination by the Company of Employee's employment
without Cause within 12 months after a Change in Control which occurs
during the Term, Employee shall be entitled to all of the payments and
benefits specified in Section 3 below; provided that, the amount payable
under Section 3.b. below shall be reduced to the extent necessary so that
the total of all payments to Employee under Section 3 and otherwise due to
a Change in Control do not (i) constitute an "excess parachute payment"
(as defined in Section 280G of the Code) and (ii) cause the Employee to be
required to pay an excise tax under Section 4999 of the Code. If such
reduction is necessary, the aggregate amount payable to Employee under
Section 3.b. shall be reduced to the largest amount that would result in
no portion of the amounts payable to the Employee upon a Change in Control
being subject to the excise tax under Section 4999 of the Code. The
determination of the reductions to be made shall be made by the Company's
certified public accountants for the year immediately prior to the
Termination Date, and such determination shall be conclusive and binding
upon the Company and the Employee.
e. If Employee voluntarily terminates Employee's employment within
12 months after a Change in Control which occurs during the Term, Employee
shall notify the Company in writing if Employee believes the termination
is for Good Reason. Employee shall set forth in reasonable detail why
Employee believes there is Good Reason. If such termination is for Good
Reason, Employee shall be entitled to all of the payments and benefits
specified in Section 3 below; provided that, the amount payable under
Section 3.b. below shall be reduced to the extent necessary so that the
total of all payments to Employee under Section 3 and otherwise due to a
Change in Control do not (i) constitute an "excess parachute payment" (as
defined in Section 280G of the Code) and (ii) cause the Employee to be
required to pay an excise tax under Section 4999 of the Code. If such
reduction is necessary, the aggregate amount payable to Employee
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under Section 3.b. shall be reduced to the largest amount that would
result in no portion of the amounts payable to the Employee upon a Change
in Control being subject to the excise tax under Section 4999 of the Code.
The determination of the reductions to be made shall be made by the
Company's certified public accountants for the year immediately prior to
the Termination Date, and such determination shall be conclusive and
binding upon the Company and the Employee.
If such voluntary termination is for other than Good Reason, then Employee
shall be entitled only to the payments specified in Section 3.a. below.
3. PAYMENTS AND BENEFITS UPON TERMINATION OF EMPLOYMENT WITHIN 12 MONTHS
AFTER A CHANGE IN CONTROL WHICH OCCURS DURING TERM. To the extent provided in 2
above, upon termination of Employee's employment within 12 months after a Change
in Control which occurs during the Term, Employee shall receive the following
payments and benefits:
a. The Company shall pay to Employee on the Termination Date (i) the
full base salary earned by Employee through the Termination Date and
unpaid at the Termination Date, plus (ii) any bonus earned by Employee
through the Termination Date and unpaid at the Termination Date; (iii)
credit for any vacation earned by Employee through the Termination Date
but not taken at the Termination Date, plus (iv) all other amounts earned
by Employee and unpaid as of the Termination Date.
b. The Company shall pay to Employee, in equal installments in
accordance with Company's regular payroll periods and practices, an amount
equal to x/12(1/) multiplied by Employee's base annual salary at the
highest rate in effect at any time during the twelve months immediately
preceding the Termination Date. In addition, the Company shall pay to
Employee, in equal installments in accordance with the Company's regular
payroll periods and practices, x/12 (1/) multiplied by Employee's targeted
bonus for the fiscal year in which the Termination Date occurs prorated to
the Termination Date.
c. The Company shall provide to Employee for a period of twelve
months after the Termination Date medical and/or dental coverage under the
medical and dental plans maintained by the Company. The Employee does not
have to pay any premiums for this coverage. This extended coverage shall
run concurrently with any period of continuation coverage to which the
Employee is entitled under Section 601 of ERISA. Upon Employee's
re-employment during such period, to the extent covered by the new
employer's plan, coverage under the
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1/ For purposes of this Section 3(b), the numerator "x" shall be twelve unless a
court of competent jurisdiction determines the Restricted Period in paragraph
7(a)(i)(A) should be less than twelve months, in which case the numerator "x"
shall be the number of months so determined by the court to be reasonably
necessary to protect the Company's legitimate business interests.
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Company's plan shall lapse, subject to any continuation of coverage rights
under Section 601 of ERISA. Additionally, the Company shall pay to
Employee in equal installments in accordance with Company's regular
payroll periods and practices, an amount equal to, with respect to each
non-vested option to purchase Company stock held by the Employee which
would have vested within the twelve (12) month period following the
Termination Date, the excess, if any, of the fair market value (determined
as of the Termination Date) of the Company stock subject to such option
over the exercise price of such option.
Employee's participation in and/or coverage under all other employee
benefit plans, programs or arrangements sponsored or maintained by the
Company shall cease to be effective as of the Termination Date, unless the
terms of an insured employee benefit plan, program or arrangement provide
for an earlier date of termination due to an actively at work requirement
that ceases to be satisfied prior to the Termination Date.
d. The Company shall pay the reasonable costs of outplacement
services selected by the Company.
4. MITIGATION OR REDUCTION OF BENEFITS. Employee shall not be required to
mitigate the amount of any payment provided for in Section 3 by seeking other
employment or otherwise. Except as otherwise specifically set forth herein, the
amount of any payment or benefits provided in Section 3 shall not be reduced by
any compensation or benefits or other amounts paid to or earned by Employee as
the result of employment by another employer after the Termination Date or
otherwise.
5. EMPLOYEE EXPENSES AFTER CHANGE IN CONTROL. If Employee's employment is
terminated by the Company within 12 months after a Change in Control which
occurs during the Term and there is a dispute with respect to this Agreement,
then all Employee's costs and expenses (including reasonable legal and
accounting fees) incurred by Employee (a) to defend the validity of this
Agreement, (b) if Employee's employment has been terminated for Cause, to
contest such termination, (c) to contest any determinations by the Company
concerning the amounts payable by the Company under this Agreement, or (d) to
otherwise obtain or enforce any right or benefit provided to Employee by this
Agreement, shall be paid by the Company if Employee is the prevailing party.
6. RELEASE. Notwithstanding anything to the contrary stated in this
Agreement, no benefits will be paid pursuant to Section 3 except under Section
3.a. prior to execution by Employee of a release to the Company in the form
attached as Exhibit A.
7. COVENANT NOT TO COMPETE. Benefits payable pursuant to Sections 3.b,
3.c, and 3.e, are subject to the following restrictions.
a. Post-Termination Restrictions.
(i) Employee acknowledges that services to be provided give
Employee the opportunity to have special knowledge of the Company
and
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its Confidential Information and the capabilities of individuals
employed by or affiliated with the Company and that interference in
these relationships would cause irreparable injury to the Company.
In consideration of this Agreement, Employee covenants and agrees
that:
(A) From the date hereof until twelve (12) months (or
for six (6) months if a court finds that twelve (12) months
are unreasonable) after the termination of the Term (the
"Restricted Period"), Employee will not, without the express
written approval of the Chief Executive Officer of the
Company, directly or indirectly, anywhere in the Market, in
one or a series of transactions, own, manage, operate,
control, invest or acquire an interest in or otherwise engage
or participate in, whether as a proprietor, partner,
stockholder, lender, director, officer, employee, joint
venturer, investor, lessor, agent, representative or other
participant, any business which competes, directly or
indirectly, with the Business in the Market ("Competitive
Business") without regard to (a) whether the Competitive
Business has its office or other business facilities within or
without the Market, (b) whether any of the activities of the
Employee referred to above occur or are performed within or
without the Market, or (c) whether the Employee resides, or
reports to an office, within or without the Market; provided,
however, that (x) the Employee may, anywhere in the Market,
directly or indirectly, in one or a series of transactions,
own, invest or acquire an interest in up to five percent (5%)
of the capital stock of a corporation whose capital stock is
traded publicly, or (y) Employee may accept employment with a
successor company to the Company.
(B) Without regard to the reason for Employee's
termination, from the date hereof until twelve (12) months
after the termination of the Term (which shall not be reduced
by (x) any period of violation of this Agreement by Employee
or (y) if the Company is the prevailing party in any
litigation to enforce its rights under this Section 7, the
period which is required for such litigation), Employee will
not, without the express prior written approval of the Chief
Executive Officer of the Company, directly or indirectly, in
one or a series of transactions: (a) recruit, solicit or
otherwise induce or influence any proprietor, partner,
stockholder, lender, director, officer, employee, sales agent,
joint venturer, investor, lessor, customer, agent,
representative or any other person which has a business
relationship with the Company Group or had a business
relationship with the Company Group within the twenty-four
(24) month period preceding the date of the incident in
question, to discontinue, reduce or modify such employment,
agency or business relationship with the Company Group; or (b)
employ or seek to employ or cause any Competitive
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Business or any other private post secondary educational
institution to employ or seek to employ any person or agent
who is then (or was at any time within twenty-four (24) months
prior to the date the Employee or the Competitive Business
employs or seeks to employ such person) employed or retained
by the Company Group. Notwithstanding the foregoing, nothing
herein shall prevent the Employee from providing a letter or
recommendation to an employee with respect to a future or any
other employment opportunity.
(C) The scope and term of this Section 7 would not
preclude Employee from earning a living with an entity that is
not a Competitive Business.
(ii) Upon the determination of a majority of the Board of
Directors that Employee has breached Employee's obligations in any
material respect under this Section 7, the Company, in addition to
pursuing all available remedies under this Agreement, at law or
otherwise, and without limiting its right to pursue the same, shall
cease all payment to Employee under this Agreement.
b. Acknowledgment Regarding Restrictions. Employee recognizes and
agrees that the restraints contained in Section 7.a. (both separately and
in total) are reasonable and should be fully enforceable in view of the
high level positions Employee has had with the Company, and the Company's
legitimate interests in protecting its Confidential Information and its
goodwill and relationships. Employee specifically hereby acknowledges and
confirms that Employee is willing and intends to, and will, abide fully by
the terms of Section 7.a. of this Agreement. Employee further agrees that
the Company would not have adequate protection if Employee were permitted
to work in a Competitive Business in violation of the terms of this
Agreement since the Company would be unable to verify whether its
Confidential Information was being disclosed and/or misused.
c. Company's Right to Injunctive Relief. In the event of a breach or
imminent breach of any of Employee's duties or obligations in this
Agreement, including without limitation Employee's duties and
responsibilities under the terms and provisions of Section 7.a. of this
Agreement, the Company shall be entitled to immediately cease all payments
and benefits to Employee under Section 3.b. and, in the event of an actual
breach, require Employee to disgorge and repay to Company all payments and
benefits previously paid to or conferred upon Employee under this
Agreement. Employee agrees that if Employee breaches any duties or
obligations Employee has under this Agreement, that Employee has no right
to any money under this Agreement that Employee must return any money paid
to Employee hereunder, and that Employee forfeits any right to receive
money under this Agreement. In addition to any other legal or equitable
remedies the Company may have (including any right to damages that it
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may suffer), the Company shall be entitled to temporary, preliminary and
permanent injunctive relief restraining such breach or imminent breach.
Employee hereby expressly acknowledges that the harm which might result to
Company's business as a result of noncompliance by Employee with any of
the provisions of Section 7.a. would be largely irreparable. Employee
specifically agrees that if there is a question as to the enforceability
of any of the provisions of Section 7.a. hereof, Employee will not engage
in any conduct inconsistent with or contrary to such Section until after
the question has been resolved by a final judgment of a court of competent
jurisdiction. Employee undertakes and agrees that if Employee breaches or
threatens to breach the Agreement, Employee shall be liable for any
attorneys' fees and costs incurred by Company in enforcing its rights
hereunder.
d. Employee Agreement to Disclose this Agreement. Employee agrees to
disclose, during the twelve-month period following a Termination Date
described in the second sentence of Section 2.d, the terms of this Section
7 to any potential future employer.
8. CONFIDENTIAL INFORMATION.
a. During and after the Term, Employee will not, directly or
indirectly, in one or a series of transactions, disclose to any person, or
use or otherwise exploit for the Employee's own benefit or for the benefit
of anyone other than the Company, any Confidential Information, whether
prepared by Employee or not; provided, however, that any Confidential
Information may be disclosed (i) to officers, representatives, employees
and agents of the Company who need to know such Confidential Information
in order to perform the services or conduct the operations required or
expected of them in the Business, and (ii) in good faith by the Employee
in connection with the performance of Employee's duties hereunder.
Employee shall use Employee's best efforts to prevent the removal of any
Confidential Information from the premises of the Company, except as
required in Employee's normal course of employment by the Company.
Employee shall use Employee's best efforts to cause all persons or
entities to whom any Confidential Information shall be disclosed by
Employee hereunder to observe the terms and conditions set forth herein as
though each such person or entity was bound hereby. Employee shall have no
obligation hereunder to keep confidential any Confidential Information if
and to the extent disclosure of any thereof is specifically required by
law; provided, however, that in the event disclosure is required by
applicable law, the Employee shall provide the Company with prompt notice
of such requirement, prior to making any disclosure, so that the Company
may seek an appropriate protective order. At the request of the Company,
Employee agrees to deliver to the Company, at any time during the Term, or
thereafter, all Confidential Information which Employee may possess or
control. Employee agrees that all Confidential Information of the Company
(whether now or hereafter existing) conceived, discovered or made by
Employee during the Term exclusively belongs to the Company (and not to
Employee). Employee will promptly disclose such Confidential Information,
to the Company
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and perform all actions reasonably requested by the Company to establish
and confirm such exclusive ownership.
b. The terms of Section 7 shall survive the termination of this
Agreement regardless of who terminates this Agreement, or the reasons
therefor.
9. NOTICE. All notices hereunder shall be in writing and shall be deemed
to have been duly given (a) when delivered personally or by courier, or (b) on
the third business day following the mailing thereof by registered or certified
mail, postage prepaid, or (c) on the first business day following the mailing
thereof by overnight delivery service, in each case addressed as set forth
below:
a. If to the Company:
(Prior to October 31, 2003)
Universal Technical Institute, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇▇
Attn: General Counsel
(After October 31, 2003)
Universal Technical Institute, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
b. If to Employee:
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Any party may change the address to which notices are to be addressed by giving
the other party written notice in the manner herein set forth.
10. SUCCESSORS; BINDING AGREEMENT.
a. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, upon or
prior to such succession, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would
have been required to perform it if no such succession had taken place. A
copy of such assumption and agreement shall
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be delivered to Employee promptly after its execution by the successor.
Failure of the Company to obtain such agreement upon or prior to the
effectiveness of any such succession shall be a breach of this Agreement
and shall entitle Employee to benefits from the Company in the same
amounts and on the same terms as Employee would be entitled hereunder if
Employee terminated Employee's employment for Good Reason. For purposes of
the preceding sentence, the date on which any such succession becomes
effective shall be deemed the Termination Date. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Section 10.a. or which otherwise becomes
bound by the terms and provisions of this Agreement by operation of law.
b. This Agreement is personal to Employee and Employee may not
assign or delegate any part of Employee's rights or duties hereunder to
any other person, except that this Agreement shall inure to the benefit of
and be enforceable by Employee's legal representatives, executors,
administrators, heirs and beneficiaries.
11. SEVERABILITY. If any provision of this Agreement or the application
thereof to any person or circumstance shall to any extent be held to be invalid
or unenforceable, the remainder of this Agreement and the application of such
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby, and each provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law. A court can reasonably modify this Agreement by rewriting it and/or it can
"blue-pencil" this Agreement by striking things out.
12. HEADINGS. The headings in this Agreement are inserted for convenience
of reference only and shall not in any way affect the meaning or interpretation
of this Agreement.
13. COUNTERPARTS. This Agreement may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
14. WAIVER. Neither any course of dealing nor any failure or neglect of
either party hereto in any instance to exercise any right, power or privilege
hereunder or under law shall constitute a waiver of such right, power or
privilege or of any other right, power or privilege or of the same right, power
or privilege in any other instance. Without limiting the generality of the
foregoing, Employee's continued employment without objection shall not
constitute Employee's consent to, or a waiver of Employee's rights with respect
to, any circumstances constituting Good Reason. All waivers by either party
hereto must be contained in a written instrument signed by the party to be
charged therewith, and, in the case of the Company, by its duly authorized
officer.
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15. ENTIRE AGREEMENT. This instrument constitutes the entire agreement of
the parties in this matter and shall supersede any other agreement between the
parties, oral or written, concerning the same subject matter.
16. AMENDMENT. This Agreement may be amended only by a writing which makes
express reference to this Agreement as the subject of such amendment and which
is signed by Employee and by a duly authorized officer of the Company.
17. GOVERNING LAW. In light of Company's and Employee's substantial
contacts with the State of Arizona, the facts that the Company is headquartered
in Arizona and Employee resides in and/or reports to Company management in
Arizona, the parties' interests in ensuring that disputes regarding the
interpretation, validity and enforceability of this Agreement are resolved on a
uniform basis, and Company's execution of, and the making of, this Agreement in
Arizona, the parties agree that: (i) any litigation involving any noncompliance
with or breach of the Agreement, or regarding the interpretation, validity
and/or enforceability of the Agreement, shall be filed and conducted exclusively
in the state or federal courts in Arizona; and (ii) the Agreement shall be
interpreted in accordance with and governed by the laws of the State of Arizona,
without regard for any conflict/choice of law principles.
IN WITNESS WHEREOF, Employee and the Company have executed this Agreement
as of the day and year first above written.
UNIVERSAL TECHNICAL INSTITUTE, INC.
By: __________________________
EMPLOYEE
By: __________________________
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SCHEDULE 1
Additional Companies in the Company Group
a. Universal Technical Institute, Inc.
b. UTI Holdings, Inc.
c. U.T.I. of Illinois, Inc.
d. Universal Technical Institute of Texas, Inc.
e. Universal Technical Institute of California, Inc.
f. Custom Training Group, Inc.
g. The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation
h. Universal Technical Institute of North Carolina, Inc.
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Exhibit A
RELEASE
RELEASE (the "Release") dated _____________, _____ between _______________
("Employee") and Universal Technical Institute, Inc., a Delaware corporation
("Company").
WHEREAS, the Company and Employee are parties to a Severance Agreement
dated ____________, ____ (the "Severance Agreement"), which provides certain
protection to Employee during management transition and thereafter and in the
event there is any change in corporate structure which results in a change in
control of the Company.
WHEREAS, the execution of this Release is a condition precedent to, and
material inducement to, the Company's provision of certain benefits under the
Severance Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. MUTUAL PROMISES. The Company undertakes the obligations contained in
the Severance Agreement, which are in addition to any compensation to which
Employee might otherwise be entitled, in exchange for Employee's promises and
obligations contained herein. The Company's obligations are undertaken in lieu
of any other severance benefits.
2. RELEASE OF CLAIMS; AGREEMENT NOT TO FILE SUIT.
a. Employee, for and on behalf of him or herself and his/her heirs,
beneficiaries, executors, administrators, successors, assigns and anyone
claiming through or under any of the foregoing, agrees to, and does,
remise, release and forever discharge the Company and its subsidiaries and
affiliates, each of their shareholders, directors, officers, employees,
agents and representatives, and its successors and assigns (collectively,
the "Company Released Persons"), from any and all matters, claims,
demands, damages, causes of action, debts, liabilities, controversies,
judgments and suits of every kind and nature whatsoever, foreseen or
unforeseen, known or unknown, which have arisen or could arise from
matters which occurred prior to the date of this Release, which matters
include without limitation: (i) the matters covered by the Severance
Agreement and this Release, (ii) Employee's employment, and/or termination
from employment with the Company, and (iii) any claims which might
otherwise arise in the future as a result of arrangements or agreements in
effect as of the date of this Release or the continuance of such
arrangements and agreements.
b. Employee, for and on behalf of him or herself and his/her heirs,
beneficiaries, executors, administrators, successors, assigns, and anyone
claiming
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through or under any of the foregoing, agrees that Employee will not file
or otherwise submit any charge, claim, complaint, or action to any agency,
court, organization, or judicial forum (nor will Employee permit any
person, group of persons, or organization to take such action on
Employee's behalf) against any Company Released Person arising out of any
actions or non-actions on the part of any Company Released Person arising
before the date of this Release or any action taken after the date of this
Release pursuant to the Severance Arrangement. Employee further agrees
that in the event that any person or entity should bring such a charge,
claim, complaint, or action on Employee's behalf, Employee hereby waives
and forfeits any right to recovery under said claim and will exercise
every good faith effort to have such claim dismissed.
c. The charges, claims, complaints, matters, demands, damages, and
causes of action referenced in Sections 2(a) and 2(b) include, but are not
limited to: (i) any breach of an actual or implied contract of employment
between Employee and any Company Released Person, (ii) any claim of
unjust, wrongful, or tortuous discharge (including any claim of fraud,
negligence, retaliation for whistle blowing, or intentional infliction of
emotional distress), (iii) any claim of defamation or other common law
action, or (iv) any claims of violations arising under the Civil Rights
Act of 1964, as amended, 42 U.S.C.Section 2000e et seq., the Age
Discrimination in Employment Act, 29 U.S.C.Section 621 et seq., the
Americans with Disabilities Act of 1990, 42 U.S.C.Section 12101 et seq.,
the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.Section 201 et
seq., the Rehabilitation Act of 1973, as amended, 29 U.S.C.Section 701 et
seq., or any other relevant federal, state, or local statutes or
ordinances, or any claims for pay, vacation pay, insurance, or welfare
benefits or any other benefits of employment with any Company Released
Person arising from events occurring prior to the date of this Release
other than those payments and benefits specifically provided herein.
d. This Release shall not affect Employee's right to any
governmental benefits payable under any Social Security or Worker's
Compensation law now or in the future.
3. RELEASE OF BENEFIT CLAIMS. Employee, for and on behalf of him or
herself and his/her heirs, beneficiaries, executors, administrators, successors,
assigns and anyone claiming through or under any of the foregoing, further
releases and waives any claims for pay, vacation pay, insurance or welfare
benefits or any other benefits of employment with any Company Released Person
arising from events occurring prior to the date of this Release other than
claims to the payments and benefits specifically provided for in the Severance
Agreement.
4. REVOCATION PERIOD; KNOWING AND VOLUNTARY AGREEMENT.
a. Employee acknowledges that Employee had at least forty-five (45)
days to consider whether or not to accept this Agreement. Furthermore,
Employee may revoke this Agreement for seven (7) days following its
execution.
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b. Employee represents, declares and agrees that Employee
voluntarily accepts the payments described above for the purposes of
making a full and final compromise, adjustment and settlement of all
potential claims hereinabove described. Employee hereby acknowledges that
Employee has been advised of the opportunity to consult an attorney and
that Employee understands the Release and the effect of signing the
Release.
5. SEVERABILITY. If any provision of this Release or the application
thereof to any person or circumstance shall to any extent be held to be invalid
or unenforceable, the remainder of this Release and the application of such
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby, and each provision of
this Release shall be valid and enforceable to the fullest extent permitted by
law.
6. HEADINGS. The headings in this Release are inserted for convenience of
reference only and shall not in any way affect the meaning or interpretation of
this Release.
7. COUNTERPARTS. This Release may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
8. ENTIRE AGREEMENT. This Release and Related Severance Agreement
constitutes the entire agreement of the parties in this matter and shall
supersede any other agreement between the parties, oral or written, concerning
the same subject matter.
9. GOVERNING LAW. This Release shall be governed by, and construed and
enforced in accordance with, the laws of the State of Arizona, without reference
to the conflict of laws rules of such State.
IN WITNESS WHEREOF, Employee and the Company have executed this Release as
of the day and year first above written.
UNIVERSAL TECHNICAL INSTITUTE, INC.
By: __________________________
EMPLOYEE
By: __________________________
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