EXHIBIT 10.9
EMPLOYMENT AND NON-INTERFERENCE AGREEMENT
This Agreement, dated as of April 1, 2002, by and between Xxxx X. Xxxxx
(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; and
WHEREAS, the Executive is willing, upon the terms and conditions herein
set forth, to provide services hereunder; and
WHEREAS, the Company wishes to secure the Executive's non-interference,
upon the terms and conditions herein set forth;
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)), (a) as Strategic Planning Officer of the Company and
(b) as Co-Chairman of the Board of Directors 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 Strategic Planning
Officer of such company and as Co-Chairman of its Board of Directors.
2. Extent of Employment
(a) During the Term of Employment, the Executive shall perform his
obligations hereunder faithfully and to the best of his ability at the principal
executive offices of the Company, under the direction of the Board of Directors
of the Company to which the Executive shall directly report, and shall abide by
the rules, customs and usages from time to time established by the Company.
(b) During the Term of Employment, the Executive shall devote all of
his business time, energy and skill as may be reasonably necessary for the
performance of his 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 his employment, the Executive shall live in the
Phoenix, Arizona area and generally perform his 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 September 30, 2006 (such term ending on September 30,
2006 being the "Original Term"). 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 and on the date of such earlier
termination.
(b) Subject to the payments contemplated by Section 3(e), 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, his
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:
(i) upon the death of Executive;
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(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, his
duties hereunder for 180 days in any continuous 210 day period;
(iii) as a result of a material reduction in 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), a requirement that the
Executive relocate outside the Phoenix, Arizona metropolitan area or
the Company's willful, material violation of its obligations under this
Agreement, 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; 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 serious 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 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;
(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 his 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 willful and continual neglect or failure to
discharge his material duties, responsibilities or obligations
prescribed by this Agreement or any other agreement between the
Executive and any company in the Company Group; provided, that the
Executive has been given notice and 30 days from such notice fails to
cure the neglect or failure;
(vii) Executive's alcohol or substance abuse, which materially
interferes with Executive's ability to discharge his 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;
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(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 Agreement,
the Penske/Charlesbank Stock Purchase Agreement, the Credit Agreement,
the Certificate of Incorporation or By-Laws of the Company; provided,
that the Executive has been given notice and 30 days from such notice
fails to cure the violation; 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; provided, that the Executive has been given notice and 30
days from such notice fails to cure the failure.
(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 his estate or representative) the full
amounts to which he 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), the Company will also pay
the Executive the full amounts to which he would be entitled under
Section 4(a) for the period from effectiveness of termination to the
earlier to occur of (i) September 30, 2006 (or the end of any
applicable renewal term) or (ii) the date 4 years following such
effectiveness of termination, on the regular payment dates established
pursuant to Section 4(a) in accordance with Company practices.
(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.
(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.
(g) Upon the conclusion of the Original Term of this Agreement and upon
each succeeding anniversary of this Agreement, the Executive's Term of
Employment will be automatically renewed for an additional one 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
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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 his services hereunder, in twenty-six (26)
equal installments, a base salary at a rate of $312,500 per annum, subject to
annual cost of living adjustments based on the Consumer Price Index. 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 at the beginning of each fiscal year.
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. If the Board of Directors pays a
bonus, it is to be paid within 30 days after the issuance of audited financial
statements for the Company and shall not exceed 60% of Executive's annual base
salary. The Board of Directors in its sole discretion may establish a higher
bonus level based on the performance of Executive.
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 his 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
(a) During the Term of Employment the Executive shall be entitled to
the following benefits from the Company:
(i) a car allowance of $1,000 per month, which shall include
reimbursement for cellular car phone fees and gasoline;
(ii) automobile insurance coverage paid by the Company
consistent with the Company's past practice; and
(iii) coverage by an executive medical reimbursement plan for
up to an aggregate total of $15,000 per calendar year (subject to
annual cost of living adjustments based on the Consumer Price Index) in
noninsurable medical matters for Executive and his family,
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including but not limited to Executive's purchase of supplemental or
additional insurance policies that provide coverage not offered by the
Company. Any unused portion of such $15,000 annual maximum amount,
including cumulative unused amounts from prior years, will be carried
forward and added to the following calendar year's maximum dollar
amount.
In addition to the foregoing, during the Term of Employment the Executive shall
be entitled to such 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.
(b) Following the Term of Employment, the Company shall maintain at
Company expense health care insurance benefits for the Executive and his spouse
comparable to that provided to the executives of the Company and the Executive
Medical Reimbursement Plan as described in 6 (a) (iii) above. These benefits
will be provided until and including age 65. If, at this time, there remains any
unused amounts in the Executive Medical Reimbursement Plan, the plan shall
remain in effect (with no additional funds added) until such time as those
remaining funds are exhausted.
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 known 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
his duties hereunder. Executive shall use his best efforts to prevent the
removal of any Confidential Information from the premises of the Company, except
as required in his normal course of employment by the Company. Executive shall
use his best efforts to cause all persons or entities to whom any Confidential
Information shall be disclosed by him 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 he may possess or
control. Executive agrees that all Confidential Information of the Company
(whether now or hereafter existing) conceived, discovered or made by him during
the Term of Employment exclusively belongs to the Company (any 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.
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(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 services to be provided give him 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:
(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
March 31, 2007, or the first anniversary of expiration or termination
of the Term of Employment (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
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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 would not 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 his 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 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 the assets of the Xxxxxxx Xxxxxx
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 of the type owned and operated by the
Company Group, 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).
"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 the Section
8(a)(i).
"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 contacts, 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
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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., Xxxxx, Xxxxx &
Xxxxx, and certain other parties, as the same may be amended, extended,
restated, supplemented or modified from time to time.
"Executive" means Xxxx X. Xxxxx or his estate, if deceased.
"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 permit of, administered or enforced by or on behalf of any Authority,
and the Certificate of Incorporation and By-laws of the Company, as applicable.
"Restricted Period" has the meaning set fourth 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).
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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: Xxxx X. Xxxxx
Universal Technical Institute, Inc.
00000 Xxxxx Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxxxxx & Xxxxxxx
0000 X. Xxxxxxxxx Xxxx
Xxxxxxx,Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Business Fax: (000) 000-0000
If to the Company: Chairman of the Compensation Committee
of the Board of Directors
c/o Universal Technical Institute
00000 Xxxxx Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to: The Jordan Company
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: A. Xxxxxxx Xxxxxx, Xx.
Facsimile No.: (000) 000-0000
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 his 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
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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
this breach of 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 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, Successors
Neither the Executive nor the Company may assign, transfer, pledge,
hypothecate, encumber or otherwise dispose of this Agreement or any of his or
its respective rights or obligations hereunder, without the prior written
consent of the other. The parties agree and
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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 NEW YORK, 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 A NEW YORK FEDERAL OR STATE COURT, OR THE TAKING
OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SUCH A JUDGMENT, IN ANY OTHER
APPROPRIATE JURISDICTION.
(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
SOUTHERN DISTRICT OF NEW YORK, 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 SOUTHERN DISTRICT OF NEW YORK;
(3) AGREE TO WAIVE TO THE FULL EXTENT PERMITTED
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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 SOUTHERN DISTRICT OF NEW YORK; (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.
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]
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the
day and year first written above.
EXECUTIVE:
/s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
UNIVERSAL TECHNICAL INSTITUTE
OF ARIZONA, INC.
By: /s/ Xxxxxxxx X. XxXxxxxx
-------------------------
Name: Xxxxxxxx X. XxXxxxxx
Title: President
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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 Xxxxxxx Xxxxxx Corporation
8. Clinton Education Group, Inc.
9. Universal Technical Institute of North Carolina, Inc.
