Exhibit 10.11
EMPLOYMENT AND NON-INTERFERENCE AGREEMENT
This Agreement, dated as of November 30, 2003, by and between ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ (the "Executive") and Universal Technical Institute of Arizona, Inc., a
Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company wishes to obtain the future services of the Executive
for the Company;
WHEREAS, the Executive is willing, upon the terms and conditions herein
set forth, to provide services hereunder;
WHEREAS, the Company wishes to preserve its confidential information and
secure the Executive's non-interference, upon the terms and conditions herein
set forth; and
WHEREAS, in order to accomplish its objectives, the Company believes it is
essential that certain of its executives, such as the Executive, 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.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Nature of Employment
Subject to Section 3, the Company hereby employs Executive, and Executive
agrees to accept such employment, during the Term of Employment (as defined in
Section 3(a)) as Chief Financial Officer of the Company. The Company shall also
cause the Executive to be employed, and Executive hereby agrees to be employed,
during the Term of Employment by each of the companies listed in Schedule 1
(which companies, together with the Company, shall be referred to collectively
as the "Company Group"), in each case as Chief Financial Officer of such
company.
2. Extent of Employment
(a) During the Term of Employment, the Executive shall perform her
obligations hereunder faithfully and to the best of her ability at the principal
executive offices of the Company, under the direction of the Company's Chief
Executive Officer to which the Executive shall directly report or as the
Company's Board of Directors deems appropriate, and shall abide by the policies,
rules, customs and usages from time to time established by the Company.
(b) During the Term of Employment, the Executive shall devote all of her
business time, energy and skill as may be reasonably necessary for the
performance of her duties, responsibilities and obligations hereunder (except
for vacation periods and reasonable periods of illness or other incapacity),
consistent with past practices and norms in similar positions.
(c) Nothing contained herein shall require Executive to follow any
directive or to perform any act which would violate 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 (collectively "Regulations"). Executive will not
knowingly (i) breach or violate any provision of any Regulations in any material
respect or (ii) otherwise act in any manner which might reasonably be expected
to have a material adverse effect on the ongoing business, operations,
conditions, prospects or other business relationships or properties of any
company in the Company Group.
(d) During the term of her employment, the Executive shall live in the
Phoenix, Arizona, area and generally perform her duties under this Agreement
from the Company's offices in the Phoenix area.
3. Term of Employment; Termination
(a) The "Term of Employment" shall commence on the date hereof and shall
continue through April 1, 2005, and any renewals pursuant to Section 3(g).
Should the Executive's employment be earlier terminated by the Company pursuant
to Section 3(b) or by the Executive pursuant to Section 3(c), the Term of
Employment shall end on the date of such earlier termination.
(b) Subject to the payments contemplated by Section 3(e), the Term of
Employment may be terminated at any time by the Company:
(i) upon the death of Executive;
(ii) in the event that because of physical or mental disability the
Executive is unable to perform, and does not perform, as certified by a
mutually agreeable competent medical physician, her material duties
hereunder for 180 days in any continuous 210 day period;
(iii) for Cause (as defined in Section 3(d));
(iv) for any other reason not referred to in clauses (i) through
(iii) or no reason, such that this Agreement, subject to the provisions of
Section 3(e), shall be construed as terminable at will by the Company.
Executive acknowledges that no representations or promises have been made
concerning the grounds for termination or the future operation of the Company's
business, and that, except as set forth in the following sentence, nothing
contained herein or otherwise stated by or on behalf of the Company modifies or
amends the right of the Company to terminate Executive at any time, with or
without Cause. Termination shall become effective 30 days after, or, if for
Cause, upon the delivery by the Company to the Executive of notice specifying
such termination and, if for Cause, the reasons therefor.
(c) Subject to the Company's obligations to make the payments contemplated
by Section 3(e), the Term of Employment may be terminated at any time by the
Executive:
2
(i) upon the death of Executive;
(ii) in the event that because of physical or mental disability the
Executive is unable to perform, and does not perform, as certified by a
mutually agreeable competent medical physician, her duties hereunder for
180 days in any continuous 210 day period;
(iii) for Good Reason, as defined in Section 9; or
(iv) voluntarily or for any reason or no reason not referred to in
clauses (i) through (iii) in each case, after 120 days' prior written
notice to the Company and its Board of Directors.
(d) For the purposes of this Section 3, "Cause" shall mean any of the
following:
(i) Executive'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
Executive's fraud, embezzlement or conversion of the Company's property;
(iii) Executive'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 Executive
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 Executive's
knowing breach of any of her 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; provided, that the Executive has been given
notice and 30 days from such notice fails to cure the breach,
misrepresentation or omission;
(vi) Executive's neglect or failure to discharge her material
duties, responsibilities or obligations prescribed by this Agreement or
any other agreement between the Executive and any company in the Company
Group;
(vii) Executive's alcohol or substance abuse, which materially
interferes with Executive's ability to discharge her duties,
responsibilities and obligations prescribed by this Agreement; provided,
that Executive has been given notice and 30 days from such notice fails to
cure such abuse;
(viii) Any material violation, with the actual knowledge of
Executive, of any obligations imposed upon Executive, personally, as
opposed to upon the Company, whether as a stockholder or otherwise, under
this Agreement, the Securities Purchase Agreement, the Asset Purchase
Agreement, the Stockholders Agreement, the Exchange
3
Agreement, the Penske/Charlesbank Stock Purchase Agreement, the Credit
Agreement, the Certificate of Incorporation or By-Laws of the Company; or
(ix) Executive'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 relationships or properties.
(e) If Executive's employment is terminated for any reason whatsoever,
then Executive shall be entitled to (i) accrued and unpaid base salary and
benefits (including sick pay, vacation pay and benefits under Section 6) with
respect to the period prior to termination, (ii) reimbursement for expenses
under Section 5 with respect to such period, and (iii) any other benefits
(including COBRA) required by law to be provided after termination of employment
under the circumstances. In the event Executive's employment is terminated
pursuant to:
(i) Section 3(b)(i) or (ii) or 3(c)(i) or (ii), the Company will
also pay to Executive (or her estate or representative) the full amounts
to which she would be entitled under Section 4(a) for the period from
effectiveness of termination through the first anniversary of such
termination;
(ii) (Section 3(b)(iii) or 3(c)(iv) there will be no additional
amounts owing by the Company to Executive under this Agreement from and
after such termination; and
(iii) Section 3(b)(iv) or 3(c)(iii), and provided that the
Restricted Period defined in Section 8(a)(i) is upheld by a court to be at
least twelve (12) months, then the Company will also pay to Executive the
full amounts to which she would be entitled under Section 4(a) for the
period from effectiveness of termination to the later to occur of (y) the
date 18 months following such effectiveness of termination and (z) April
1, 2005, on the regular payment dates established pursuant to Section 4(a)
in accordance with Company practices; provided, however, that any such
amounts paid to Executive for the first 12 months following the
effectiveness of termination pursuant to Section 3(b)(iv) or 3(c)(iii)
shall not be subject to reduction under Section 3(f)(ii) below.
(iv) Upon a termination by the Company of the Executive's employment
without Cause within 12 months after a Change in Control which occurs
during the Term of Employment, the Company also will pay the Executive the
following benefits:
(A) For a period of twelve months after her date of
termination, medical and/or dental coverage under the medical and
dental plans maintained by the Company. The Executive 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 Executive is entitled under Section 601 of ERISA. Upon
Executive's re-employment during such period, to the extent covered
by the new employer's plan, coverage under the Company's plan shall
lapse, subject to any continuation of coverage rights under Section
601 of ERISA.
4
The Executive'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 her date
of termination, 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 her date of termination.
(B) A cash lump sum payment in an amount equal to, with
respect to each non-vested option to purchase Company stock held by
the Executive which would have vested within the twelve (12) month
period following her date of termination, the excess, if any, of the
fair market value (determined as of her date of termination) of the
Company stock subject to such option over the exercise price of such
option.
(C) The reasonable costs of outplacement services selected by
the Company.
In addition, if the Executive voluntarily terminates her employment
within 12 months after a Change in Control which occurs during the Term,
she shall notify the Company in writing if she believes the termination is
for Good Reason. The Executive shall set forth in reasonable detail why
she believes there is Good Reason. If such termination is for Good Reason,
the Executive shall be entitled to all of the payments and benefits
specified in this Section 3(e)(iv). If such voluntary termination is for
other than Good Reason, then the Executive shall be entitled only to the
payments specified in Section 3(e)(ii) above.
Notwithstanding the above, the amounts payable under Section
3(e)(iv) above shall be reduced to the extent necessary so that the total
of all payments to the Executive under this Section 3(e)(iv) and otherwise
due to the Change in Control does not exceed (1) 2.99, multiplied by (2)
the Executive's "base amount," as such term is defined in Section 280G of
the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
If the Executive's employment is terminated by the Company within 12
months after a Change in Control which occurs during the Term of
Employment and there is a dispute with respect to this Agreement, then all
the Executive's costs and expenses (including reasonable legal and
accounting fees) incurred by her (1) to defend the validity of this
Agreement, (2) if the Executive's employment has been terminated for
Cause, to contest such termination, (3) to contest any determinations by
the Company concerning the amounts payable by the Company under this
Agreement, or (4) to otherwise obtain or enforce any right or benefit
provided to the Executive by this Agreement, shall be paid by the Company
if the Executive is the prevailing party.
(f) (i) Termination of the Term of Employment will not terminate
Sections 7, 8, 10 through 21, or any other provisions not associated
specifically with the Term of Employment.
5
(ii) In the event of termination, the Executive shall not have a
duty to mitigate the Company's payment obligations under
Section 3(e) by seeking alternative employment; provided,
however, that if the Executive does accept alternative
employment, payment obligations under Section 3(e) shall be
reduced to the extent of Executive's compensation under such
alternative employment.
(g) Upon the conclusion of the original sixteen (16) month term of this
Agreement ("Original Term") and upon each succeeding anniversary, the
Executive's Term of Employment will be automatically renewed for an additional
one (1) year term; provided, that neither the Company nor the Executive
terminates this Agreement pursuant to Section 3 during the Original Term or any
subsequent renewal term; and provided further, that during such Original Term,
or any renewal term, if either the Company or the Executive provides notice to
the other party of its intent not to renew the Term of Employment at least 90
days before the end of such term, this Agreement will expire upon the succeeding
anniversary of this Agreement unless earlier terminated pursuant to Section 3.
If this Agreement is terminated pursuant to Section 3 during any renewal term,
the Company shall pay to the Executive the amount (if any) to which such
Executive is entitled pursuant to and in accordance with Section 3(e) hereunder.
4. Compensation. During the Term of Employment, the Company shall pay
compensation to Executive as follows:
(a) As base compensation for her services hereunder, in twenty-six (26)
equal installments, a base salary at a rate of $195,000 per annum. The Board of
Directors shall annually, and in its sole discretion, determine whether the base
salary should be increased and, if so, the amount of such increase.
(b) An annual bonus compensation based on Executive's performance as
determined and approved by the Board of Directors, in its sole discretion, based
on performance parameters set by the Board. Such bonus will be at the full
discretion of the Board of Directors, and may not be paid at all. Executive
acknowledges that no such bonuses will be paid if the established performance
parameters are not met.
5. Reimbursement of Expenses
During the Term of Employment, the Company shall reimburse Executive for
reasonably documented travel, entertainment and other expenses reasonably
incurred by Executive in connection with the performance of her duties hereunder
and, in each case, in accordance with the reasonable rules, customs and usages
promulgated by the Company from time to time in effect.
6. Benefits
During the Term of Employment the Executive shall be entitled to the
following benefits from the Company:
(a) a car allowance of $1,000 per month, which shall include reimbursement
for cellular car phone fees and gasoline;
6
(b) automobile insurance coverage paid by the Company consistent with the
Company's past practice; and
(c) other perquisites and benefits (including, without limitation, health,
short and long term disability, pension and life insurance benefits consistent
with past practice, or as increased from time to time) established from time to
time, at the sole discretion of the Board of Directors for executives of the
Company and their families.
7. Confidential Information
(a) During and after the Term of Employment, Executive will not, directly
or indirectly in one or a series of transactions, disclose to any person, or use
or otherwise exploit for the Executive's own benefit or for the benefit of
anyone other than the Company, any Confidential Information (as defined in
Section 9), whether prepared by Executive 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 (as defined in Section 9) and (ii) in good
faith by the Executive in connection with the performance of her duties
hereunder. Executive shall use her best efforts to prevent the removal of any
Confidential Information from the premises of the Company, except as required in
her normal course of employment by the Company. Executive shall use her best
efforts to cause all persons or entities to whom any Confidential Information
shall be disclosed by her hereunder to observe the terms and conditions set
forth herein as though each such person or entity was bound hereby. Executive
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 Executive 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, Executive agrees
to deliver to the Company, at any time during the Term of Employment, or
thereafter, all Confidential Information which she may possess or control.
Executive agrees that all Confidential Information of the Company (whether now
or hereafter existing) conceived, discovered or made by her during the Term of
Employment exclusively belongs to the Company (and not to Executive). Executive
will promptly disclose such Confidential Information to the Company and perform
all actions reasonably requested by the Company to establish and confirm such
exclusive ownership.
(b) The terms of this Section 7 shall survive the termination of this
Agreement regardless of who terminates this Agreement, or the reasons therefor.
8. Non-Interference
(a) Executive acknowledges that the services to be provided give her the
opportunity to have special knowledge of the Company and 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, Executive covenants
and agrees that:
7
(i) Unless Executive is terminated pursuant to Sections 3(b)(iv) or
3(c)(iii), from the date hereof until the later to occur of April 1, 2005,
or for twelve (12) months after the expiration or termination of the Term
of Employment (or for a six (6) month period if a court finds that the
twelve (12) month period is unreasonable) (the "Restricted Period"),
Executive will not, without the express written approval of the Board of
Directors of the Company, anywhere in the Market, directly or indirectly,
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, in 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 Executive referred to above occur or are performed within or
without the Market or (C) whether the Executive resides, or reports to an
office, within or without the Market; provided, however, that (x) the
Executive 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 that (y) Executive may accept employment with a
successor company to the Company.
(ii) Without regard to the reason for Executive's termination,
during the Restricted Period (which shall not be reduced by (x) any period
of violation of this Agreement by Executive or (y) if the Company is the
prevailing party in any litigation to enforce its rights under this
Section 8, the period which is required for such litigation), Executive
will not without the express prior written approval of the Board of
Directors of the Company (A) in one or a series of transactions, 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 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 Executive 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 Executive
from providing a letter of recommendation to an employee with respect to a
future or any other employment opportunity.
(iii) The scope and term of this Section 8 is not intended to nor
will it preclude Executive from earning a living with an entity that is
not a Competitive Business.
(b) Upon the determination of a majority of the Board of Directors that
the Executive has breached her obligations in any material respect under this
Section 8, the Company, in addition to pursuing all available remedies under
this Agreement, at law or otherwise, and
8
without limiting its right to pursue the same, shall cease all payments to the
Executive under this Agreement.
9. Definitions
"Asset Purchase Agreement" means the Asset Purchase Agreement, dated as of
September 30, 1997, for the purchase of all of the assets of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Corporation and Clinton Education Group, Inc., each an Arizona corporation, as
the same may be amended, extended, restated, supplemented or modified from time
to time.
"Authority" means any governmental, regulatory or administrative body,
agency or authority, any court or judicial authority, any public, private or
industry regulatory authority, whether national, Federal, state or local or
otherwise, or any Person lawfully empowered by any of the foregoing to enforce
or seek compliance with any applicable law, statute, regulation, order or
decree.
"Business" means (a) the ownership and operation of private post-secondary
educational institutions, the primary educational program of which teaches
motorcycle mechanics, automotive mechanics or computed-aided design, 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 of Employment.
"Cause" has the meaning set forth in Section 3(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.
"Company" has the meaning set forth in the preamble.
"Company Group" has the meaning set forth in Section 1.
"Competitive Business" has the meaning set forth in Section 8(a)(i).
"Confidential Information" means any confidential information including,
without limitation, any study, data, calculations, software storage media or
other compilation of
9
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 Executive not permissible hereunder.
"Credit Agreement" means the Second Amendment and Restatement of Credit
Agreement dated as of March 29, 2002 among UTI Holdings, Inc., Universal
Technical Institute, Inc. and the various lenders party thereto, as the same may
be amended, extended, restated, supplemented or modified from time to time.
"Exchange Agreement" means the Exchange Agreement, dated as of September
30, 1997, among Universal Technical Institute, Inc., ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, and
certain other parties, as the same may be amended, extended, restated,
supplemented or modified from time to time.
"Executive" means ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or her estate, if deceased.
"Good Reason" means (1) a material reduction in the Executive'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 (2) a requirement that the Executive relocate outside
the Phoenix, Arizona metropolitan area, in each case, after 30 days' prior
written notice to the Company and its Board of Directors and the Company's
failure thereafter to cure such reduction or violation.
"Knowing" and "knowledge" shall each refer to actual knowledge without any
duty of investigation.
"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 of Employment.
"Penske/Charlesbank Stock Purchase Agreement" means the Preferred Stock
Purchase Agreement dated as of January 8, 2002 among Universal Technical
Institute, Inc., Worldwide Training Group, LLC and Charlesbank Equity Fund V,
Limited Partnership, as the same may be amended, extended, restated,
supplemented or modified from time to time.
"Regulations" means any laws, statutes, regulations, rulings, rules,
orders or permits of, administered or enforced by or on behalf of any Authority,
and the Certificate of Incorporation and By-laws of the Company, as applicable.
10
"Restricted Period" has the meaning set forth in Section 8(a)(i).
"Securities Purchase Agreement" means the Agreement for the Purchase of
Securities of Lincoln Technical Institute of Arizona, Inc., d/b/a Universal
Technical Institute ("Old UTI"), dated as of September 30, 1997, among the
current stockholders of Universal Technical Institute, Inc., the successor
corporation to Old UTI, as the same may be amended, extended, restated,
supplemented or modified from time to time.
"Stockholders Agreement" means the Stockholders Agreement dated as of
September 30, 1997 among the stockholders of Universal Technical Institute,
Inc., as the same may be amended, extended, restated, supplemented or modified
from time to time.
"Term of Employment" has the meaning set forth in Section 3(a).
10. Notice
Any notice, request, demand or other communication required or permitted
to be given under this Agreement shall be given in writing and if delivered
personally, sent by certified or registered mail, return receipt requested, sent
by overnight courier or sent by facsimile transmission (with confirmation and a
copy sent by mail within one day) as follows (or to such other addressee or
address as shall be set forth in a notice given in the same manner):
If to Executive: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Universal Technical Institute
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ____________________________
____________________________
____________________________
Attention: _________________
Facsimile No.: _____________
If to the Company: Chairman of the Compensation Committee
of the Board of Directors
c/o Universal Technical Institute
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
11
Any such notices shall be deemed to be given on the date personally delivered or
sent by facsimile transmission or such return receipt is issued or the day after
if sent by overnight courier.
11. Executive's Representation
Executive hereby warrants and represents to the Company that: (i)
Executive has carefully reviewed this Agreement and has consulted with such
advisors as Executive considers appropriate in connection with this Agreement,
(ii) Executive is not subject to any covenants, agreements or restrictions which
would be breached or violated by Executive's execution of this Agreement or by
Executive's performance of her duties hereunder and (iii) Executive will not
knowingly breach or violate any provision of any Regulations in any material
respect or in any manner which might reasonably have a material adverse effect
in respect of the ongoing business, operations, conditions, or other business
relationships or properties of any of the companies in the Company Group.
12. Company's Obligation
Executive agrees and acknowledges that the obligations owed to Executive
under this Agreement are solely the obligations of the Company, and that none of
the Company's stockholders, directors, officers or lenders will have any
obligations or liabilities in respect of this Agreement and the subject matter
hereof.
13. Validity
If, for any reason, any provision hereof shall be determined to be invalid
or unenforceable, the validity and effect of the other provisions hereof shall
not be affected thereby.
14. Severability
Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein. If any court determines that any
provision of Section 8 or any other provision hereof is unenforceable and
therefore acts to reduce the scope or duration of such provision, the provision
in its reduced form, shall then be enforceable.
15. Waiver of Breach; Specific Performance
The waiver by the Company or Executive of a breach of any provision of
this Agreement by the other party shall not operate or be construed as a waiver
of any other breach of such other party. Each of the parties (and third party
beneficiaries) to this Agreement will be entitled to enforce its rights under
any provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be an
12
adequate remedy for any breach of the provisions of Sections 7 and 8 of this
Agreement and that any party (and third party beneficiaries) may in its sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions in order to enforce or
prevent any violations of the provisions of this Agreement. In the event either
party takes legal action to enforce any of the terms or provisions of this
Agreement, the nonprevailing party shall pay the successful party's costs and
expenses, including but not limited to, reasonable attorneys' fees, incurred in
such action.
16. Assignment; Third Parties
Neither the Executive nor the Company may assign, transfer, pledge,
hypothecate, encumber or otherwise dispose of this Agreement or any of her or
its respective rights or obligations hereunder, without the prior written
consent of the other. The parties agree and acknowledge that each of the
Companies and the stockholders of, lenders to and investors therein are intended
to be third party beneficiaries of, and have rights and interests in respect of,
Executive's agreements set forth in Sections 7 and 8. Any successor in interest
to the Company (whether indirect or direct and whether by purchase, merger, or
consolidation) shall assume the obligations under this agreement in the same
manner and to the same extent as the Company would be required to perform such
obligations in the absence of a succession.
17. Amendment; Entire Agreement
This Agreement may not be changed orally but only by an agreement in
writing agreed to by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought. This Agreement embodies the
entire agreement and understanding of the parties hereto in respect of the
subject matter of this Agreement, and supersedes and replaces all prior
Agreements, understandings and commitments with respect to such subject matter.
18. Litigation
(a) THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND ENFORCED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ARIZONA, WITHOUT REGARD TO
ANY CONFLICT/CHOICE OF LAW PRINCIPLES. EACH OF THE PARTIES HERETO ACKNOWLEDGES
AND AGREES THAT IN THE EVENT OF ANY BREACH OF THIS AGREEMENT, THE NON-BREACHING
PARTY WOULD BE IRREPARABLY HARMED AND COULD NOT BE MADE WHOLE BY MONETARY
DAMAGES, AND THAT, IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE ENTITLED
AT LAW OR IN EQUITY, THE PARTIES SHALL BE ENTITLED TO SUCH EQUITABLE OR
INJUNCTIVE RELIEF AS MAY BE APPROPRIATE. THE CHOICE OF FORUM SET FORTH IN THIS
SECTION 18 SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OF AN
ARIZONA FEDERAL OR STATE COURT, OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT
TO ENFORCE SUCH A JUDGMENT, IN ANY OTHER APPROPRIATE JURISDICTION.
13
(b) IN THE EVENT ANY PARTY TO THIS AGREEMENT COMMENCES ANY LITIGATION,
PROCEEDING OR OTHER LEGAL ACTION IN CONNECTION WITH OR RELATING TO THIS
AGREEMENT, ANY RELATED AGREEMENT OR ANY MATTERS DESCRIBED OR CONTEMPLATED HEREIN
OR THEREIN, THE PARTIES TO THIS AGREEMENT HEREBY (1) AGREE UNDER ALL
CIRCUMSTANCES ABSOLUTELY AND IRREVOCABLY TO INSTITUTE ANY LITIGATION, PROCEEDING
OR OTHER LEGAL ACTION IN A COURT OF COMPETENT JURISDICTION LOCATED WITHIN THE
DISTRICT OF ARIZONA, WHETHER A STATE OR FEDERAL COURT; (2) AGREE THAT IN THE
EVENT OF ANY SUCH LITIGATION, PROCEEDING OR ACTION, SUCH PARTIES WILL CONSENT
AND SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH COURT DESCRIBED IN CLAUSE
(1) OF THIS SECTION AND TO SERVICE OF PROCESS UPON THEM IN ACCORDANCE WITH THE
RULES AND STATUTES GOVERNING SERVICE OF PROCESS (IT BEING UNDERSTOOD THAT
NOTHING IN THIS SECTION SHALL BE DEEMED TO PREVENT ANY PARTY FROM SEEKING TO
REMOVE ANY ACTION TO A FEDERAL COURT IN THE DISTRICT OF ARIZONA; (3) AGREE TO
WAIVE TO THE FULL EXTENT PERMITTED BY LAW ANY OBJECTION THAT THEY MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH LITIGATION, PROCEEDING OR ACTION IN ANY
SUCH COURT OR THAT ANY SUCH LITIGATION, PROCEEDING OR ACTION WAS BROUGHT IN ANY
INCONVENIENT FORUM; (4) AGREE TO DESIGNATE, APPOINT AND DIRECT AN AUTHORIZED
AGENT TO RECEIVE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS AND DOCUMENTS IN
ANY LEGAL PROCEEDING IN THE DISTRICT OF ARIZONA; (5) AGREE TO PROVIDE THE OTHER
PARTIES TO THIS AGREEMENT WITH THE NAME, ADDRESS AND FACSIMILE NUMBER OF SUCH
AGENT; (6) AGREE AS AN ALTERNATIVE METHOD OF SERVICE TO SERVICE OF PROCESS IN
ANY LEGAL PROCEEDING BY MAILING OF COPIES THEREOF TO SUCH PARTY AT ITS ADDRESS
SET FORTH HEREIN FOR COMMUNICATIONS TO SUCH PARTY; (7) AGREE THAT ANY SERVICE
MADE AS PROVIDED HEREIN SHALL BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
AND (8) AGREE THAT NOTHING HEREIN SHALL AFFECT THE RIGHTS OF ANY PARTY TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. TO THE EXTENT PERMITTED
BY LAW IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, ANY RELATED AGREEMENT
OR ANY MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, AND AGREE TO TAKE
ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER.
19. Further Action
Executive and the Company agree to perform any further acts and to execute
and deliver any documents which may be reasonable to carry out the provisions
hereof.
20. Headings
The headings contained in this Agreement are for convenience only and
shall not affect in any way the meaning or interpretation of this Agreement.
14
21. Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
[End of page]
15
IN WITNESS WHEREOF, the parties hereto have set their hands as of the day
and year first written above.
EXECUTIVE:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
UNIVERSAL TECHNICAL INSTITUTE
OF ARIZONA, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
and President
16
SCHEDULE 1
Additional Companies in the Company Group
1. Universal Technical Institute, Inc.
2. UTI Holdings, Inc.
3. U.T.I. of Illinois, Inc.
4. Universal Technical Institute of Texas, Inc.
5. Universal Technical Institute of California, Inc.
6. Custom Training Group, Inc.
7. The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation
8. Clinton Education Group, Inc.
9. Universal Technical Institute of North Carolina, Inc.
17
