EMPLOYMENT AGREEMENT
Exhibit 10.1
This Agreement is made and entered into freely and voluntarily by and between Xxxxx X. Xxxxx
(herein referred to as “Employee”) and Universal Technical Institute, Inc. (hereinafter referred to
as “UTI”).*
WHEREAS, Employee is currently employed by UTI; and
WHEREAS, the parties have agreed on the terms of Employee’s future employment with and
resignation from UTI in a manner which is satisfactory to both Employee and UTI;
NOW, THEREFORE, for and in consideration of the acts, payments, covenants and mutual
agreements herein described and agreed to be performed, Employee and UTI agree as follows:
1. Position and compensation. Employee agrees to continue in UTI’s employment in a
capacity and with such duties to be determined by Xxxxxxxx Xxxxx until June 30, 2010 (the
“Termination Date”). For the period March 21, 2009 until June 30, 2010, the total compensation to
be paid to Employee shall be $233,325.00, less applicable payroll taxes and other deductions as
specified by Employee, payable in equal bi-weekly payments concurrent with the Company’s regular
payroll periods. Employee will be entitled to a pro-rated portion of the fiscal 2009 bonus,
pro-rated for the period through February 28, 2009. Employee shall not be entitled to any portion
of the fiscal 2010 bonus.
Employee’s job duties will be primarily performed from Employee’s home or such other location
as designated by Xx. Xxxxx. Employee’s duties may include periodic travel to UTI campus locations.
The Company will provide Employee with such reasonable office equipment as deemed by the Company to
be necessary for Employee to perform his duties under this Agreement. Employee will continue to
report to Xxxxxxxx Xxxxx. On the Termination Date Employee will officially resign his employment
with UTI. Employee’s benefits will remain unchanged until the Termination Date.
In the event that Employee secures a full time position with the Company during the term of
this Agreement, this Agreement will become null and void. The terms and conditions of Employee’s
employment shall be determined as agreed upon between the Company and Employee for the new
position, commiserate with other similar positions in the Company.
2. Release. In consideration of the agreement of Company to continue to employ
Employee and continue to pay him compensation and benefits as set forth herein, Employee agrees to
execute a release in the form of the Release attached as Exhibit A upon the execution of this
Agreement.
| * | As used in this Agreement, the term “UTI” includes Universal Technical Institute and all of its current and former officers, directors, agents, representatives and employees, as well as all current and former entities related to or affiliated with UTI. |
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3. Employment at Will/Obligation to Abide by Policies. This Agreement does not
alter the “at will” status of Employee’s employment with UTI. Either Employee or UTI may
terminate Employee’s employment at any time, for any reason, subject to the provisions for
continued payment below. This Agreement is intended to represent the parties’ agreement to terms
and conditions of employment in the event that Employee continues to be employed by UTI until the
Termination Date. Until the Termination Date, Employee must perform the duties of his job
satisfactorily and in a professional manner and abide by the policies and procedures of the Company
as well as the UTI Code of Conduct and Employee Handbook. Employee shall continue to be subject to
the Company’s Xxxxxxx Xxxxxxx Policy and any of its amendments during the period of employment
covered by this Agreement
4. Termination without Cause. In the event that Company terminates Employee’s
employment prior to the Termination Date without Cause, Employee shall be entitled to receive the
salary set forth in Section 1 until the Termination Date defined in this Agreement. “Cause” shall
include, but not be limited to, misconduct, gross or repeated violations of established Company
policy or material breach of the duties of Employee that detrimentally affect the Company’s
business. “Cause” shall be determined at the discretion of the Company’s Chief Executive Officer.
5. Termination of Employee prior to Termination Date. In the event that Employee
voluntarily terminates his employment or is terminated with “Cause” as defined above, prior to the
Termination Date, all obligations of the Company to pay salary and benefits under Section 1 shall
cease.
6. Benefits. Employee’s current medical, dental, vision and life insurance benefits
will continue pursuant to Company policy, until June 30, 2010. Employee shall not be eligible for
tuition reimbursement after March 21, 2009. Beginning, on the first day that active employee
coverage is ineffective, Employee may elect to continue current medical and dental benefits for up
to eighteen (18) months in accordance with the plan provisions and the Consolidated Omnibus Budget
Reconciliation Action of 1985 (COBRA). In addition, if Employee signs and returns a Release in the
form of the Release attached hereto as Exhibit A after the Termination Date, the Company will
continue to pay the insurance premium for the coverage held by Employee during active employment
and any administrative fee for a period of six (6) months, provided the Employee makes a timely
election to receive COBRA benefits and pays the employee portion of the premium, if any. Following
the end of this period, Employee will be responsible to pay the full cost of the premium plus a 2%
administrative fee.
7. Outplacement. Employee shall be entitled to twelve (12) months of outplacement
services through the firm of Right Management.
8. Release upon Execution of Agreement. Employee acknowledges and agrees that in
order to receive the post termination benefits as set forth in paragraph 6, he will be required to
execute a release in the form of the Release attached as Exhibit A. Employee acknowledges that the
payment(s) and benefits referenced in this Agreement constitute special consideration to Employee
in exchange for the promises made herein by Employee and that UTI was not otherwise obligated to
provide to Employee any such payment, benefits or portion thereof.
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9. Confidentiality. Employee agrees to maintain in strictest confidentiality the
terms and existence of this Agreement, the attached Release and the discussions which led to their
creation and execution, with the exception that Employee may disclose such matters to any attorney
who is providing advice or to an accountant or federal or state tax agency for purposes of
complying
with any tax laws or as otherwise required by law. If Employee breaches this confidentiality
provision or any other term of this Agreement, UTI shall be excused from performing its obligations
hereunder. Employee further agrees this Agreement does not constitute an admission of wrongdoing
by either party and that neither this Agreement nor the negotiations that led to its creation shall
be used as evidence to prove any alleged wrong, other than a failure to comply with the terms of
this Agreement. The parties agree that this Agreement may be used as evidence in any action to
enforce the terms of this Agreement.
10. Reliance. Employee warrants and represents that: (i) Employee has relied on
Employee’s own judgment regarding the consideration for and language of this Agreement; (ii)
Employee has been given a reasonable period of time to consider said Agreement; (iii) no statements
made by UTI have in any way coerced or unduly influenced Employee to execute this Agreement; (iv)
this Agreement is written in a manner that is understandable to Employee and Employee has read and
understood all paragraphs of this Agreement; and (v) Employee has been advised to consult with
legal counsel of Employee’s choice regarding this Agreement.
11. Nature of the Agreement. This Agreement and all provisions thereof, including
all representations and promises contained herein, are contractual and not a mere recital and shall
continue in permanent force and effect. This Agreement constitutes the sole and entire agreement
of the parties with respect to the subject matter hereof, superseding all prior agreements and
understandings between the parties. This Agreement may not be modified or changed unless done so in
writing, signed by both parties. In the event that any portion of this Agreement is found to be
unenforceable for any reason whatsoever, the enforceable provision shall continue to be in full
force and effect. This Agreement shall be governed by and construed in accordance with the laws of
the State of Arizona, and the parties agree that the courts of Arizona shall have exclusive
jurisdiction over any dispute pertaining to this Agreement.
AGREED AND ACCEPTED:
| Dated: , 2009 | ||||
| Xxxxx X. Xxxxx | ||||
| Dated: , 2009 | UNIVERSAL TECHNICAL INSTITUTE, INC. | |||
| By: | ||||
| Xxx Xxxxx | ||||
| Senior Vice President, People Services | ||||
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EXHIBIT A
RELEASE
RELEASE
This RELEASE (the “Release”) dated
_____
,
_____
is by and between Xxxxx X. Xxxxx
(“Employee”) and Universal Technical Institute, Inc., a Delaware corporation (“Company”).
WHEREAS, the Company and Employee are parties to an Employment Agreement dated
_____
,
_____
(the “Employment Agreement”), which provides certain benefits to Employee; and,
WHEREAS, the execution of this Release is a condition precedent to, and material inducement
to, the Company’s provision of certain payments and benefits under the Employment Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Mutual Promises. The Company undertakes the obligations contained in the Employment
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 himself and his heirs, beneficiaries, executors,
administrators, successors, assigns and anyone claiming through or under any of the
foregoing, agrees to, and does 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 Employment Agreement and this Release, (ii) Employee’s
employment, retirement 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 himself and his heirs, beneficiaries, executors,
administrators, successors, assigns, and anyone claiming 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 the Company arising out of any actions or non-actions on the part
of the Company arising before the date of this Release or any action taken after the date of
this Release pursuant to the Employment Agreement or this Release. 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.
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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 the Company, (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. §2000e et seq., the Age
Discrimination in Xxxxxxxxxx Xxx, 00 X.X.X. §000 et seq., the Americans with
Disabilities Act of 1990, 00 X.X.X. §00000 et seq., the Fair Labor Standards Act of 1938, as
amended, 29 U.S.C. §201 et seq., the Rehabilitation Act of 1973, as amended, 29
U.S.C. §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 the Company 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. Further, this
Release is not intended to be a release of any claims under the Arizona Minimum Wage Act,
effective January 1, 2007.
e. This Release does not affect Employee’s right to participate in any federal,
state or local investigation by any governmental agency or to challenge the validity of this
Agreement.
3. Release of Benefit Claims. Employee, for and on behalf of himself and his 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 Employment agreement and claims for benefits which are not subject
to waiver under the law.
4. Revocation Period; Knowing and Voluntary Agreement. Employee acknowledges that he is
knowingly and voluntarily waiving and releasing any rights he may have under the Age Discrimination
in Employment Act, as amended, (“ADEA”). Employee also acknowledges that the consideration given
for the waiver and release in the preceding paragraph is in addition to anything of value to which
he is or would be entitled to without this Agreement. Employee further acknowledges that Employee
is advised by this writing, as required by the ADEA, that: (a) this waiver and release do not
apply to any rights or claims that may arise after execution date of this Agreement; (b) Employee
has been advised of having have the right to consult with an attorney prior to signing this
Agreement; (c) Employee has twenty-one (21) days to consider this Agreement (although Employee may
choose to voluntarily execute this Agreement earlier); (d) Employee has seven (7) days following
the signing of this Agreement by the parties to revoke the Agreement; and (e) this Agreement shall
not be effective until the date upon which the revocation period has expired, which shall be the
eighth day after this Agreement is executed by the Employee.
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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 Employment 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.
AGREED AND ACCEPTED:
| Dated: , 2009 | ||||
| Xxxxx X. Xxxxx | ||||
| Dated: , 2009 | UNIVERSAL TECHNICAL INSTITUTE, INC. | |||
| By: | ||||
| Xxx Xxxxx | ||||
| Senior Vice President, People Services | ||||
Return Original To:
Xxx Xxxxx
Senior Vice President, People Services
Universal Technical Institute, Inc.
00000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Senior Vice President, People Services
Universal Technical Institute, Inc.
00000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
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