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Exhibit 10.1
SEPARATION AGREEMENT,
WAIVER AND RELEASE
This
Agreement is made and entered into freely and voluntarily by
and between David K. Miller (hereinafter referred to as
“Employee”) and Universal Technical Institute,
Inc. (hereinafter referred to as (“UTI” or
“the Company”).
WHEREAS,
Employee has been employed by UTI or its predecessors in
interest for a period of approximately twenty-eight (28)
years; and
WHEREAS,
Employee has held various positions with UTI including serving
as Senior Vice President Sales and Senior Vice President
Campus Sales, positions which have responsibility and
oversight on a nationwide basis for the recruiting of students
for all of UTI’s campuses; and
WHEREAS,
during his employment, Employee has gained access to
confidential information as described more fully in this
Agreement and acquired an extensive amount of knowledge about
UTI’s operations, strategies, and business;
WHEREAS,
as a result of a corporate restructuring of the Company,
Employee’s employment with the Company is
ending;
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.
Termination Date .
Employee agrees, recognizes and accepts that Employee’s
employment relationship with UTI has been terminated as of
September 16, 2007 and that UTI has no obligation, contractual or
otherwise, to re-employ or recall Employee in the
future.
2.
Payment(s) .
For and in consideration of the promises and covenants set forth in
Paragraphs 9 and 10 below, through the period ending 78 weeks after
the date of this Agreement, UTI agrees to pay Employee separate
bi-weekly payments pursuant to UTI’s normal payroll practices
in the gross amount of ten thousand three hundred eighty-four
dollars and sixty two cents ($10,384.62) less applicable local,
state and federal withholdings. The total amount payable under this
Paragraph 2 shall be four hundred five thousand dollars and
eighteen cents ($405,000.18), less applicable local, state, and
federal withholdings.
3.
Bonus Payments .
For fiscal year ending September 30, 2007, Employee will be
entitled to an annual bonus if: (a) such a bonus is approved by
UTI’s Board of Directors as payable to all current employees,
and (b) Employee signs, returns, and does not revoke this
Separation Agreement, Waiver and Release. The 2007 annual bonus, if
payable, will be paid during December of 2007, and the bonus, if
any, will be based on the performance metrics previously
established by the Board of Directors. Employee shall not be
eligible or entitled to (a) any bonus for fiscal year 2008 or (b)
any stock awards after the termination of employment.
All
stock options and restricted stock held by Employee will
expire according to the applicable grant or plan, and
Employee’s existing equity in UTI that has vested shall
remain vested.
4.
Benefits .
Employee’s current medical, dental and vision benefits will
continue pursuant to UTI policy, until September 30, 2007.
Beginning, on the first day that active employee coverage is
ineffective, Employee may elect to continue current medical, dental
and vision benefits for up to eighteen (18) months in accordance
with the plan provisions and the Consolidated Omnibus Budget
Reconciliation Action of 1985 (COBRA). If Employee signs, returns
and does not revoke this Agreement, UTI will continue to pay
towards the Employee’s COBRA coverage a monthly amount equal
to the Company paid portion of the insurance premium for the
coverage held by Employee during active employment and any
administrative fee for a period of eighteen (18) months, provided
the Employee makes a timely election to receive COBRA benefits.
Additionally, Employee shall be entitled, for a eighteen (18) month
period following the termination of employment, to the perquisites
and benefits of the Execucare program or its successor
program.
UTI
will provide to Employee professional outplacement services
for a period of twelve (12) months through the firm of Right
Management, at a cost not to exceed a total value of twelve
thousand dollars ($12,000).
Employee
shall be responsible for any and all income taxes, if any,
associated with any benefits provided to him under this
Agreement.
5.
Acknowledgement of Consideration .
Employee acknowledges and agrees that the payments set forth in
Paragraph 2 are for and in consideration of the promises,
covenants, and undertakings in Paragraphs 9 and 10. Employee
further acknowledges and agrees that the payments and benefits set
forth in Paragraphs 3 and 4 are made in consideration of and are
contingent on the fulfillment of all other promises, covenants, and
undertakings set forth in this Agreement including, but not limited
to, Paragraphs 6, 7, and 8 below. Employee acknowledges and agrees
that all of 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 is not
otherwise obligated to provide to Employee any such payment,
benefits or portion thereof.
6.
Employee’s Full Release and Waiver of All Claims
.
Employee hereby releases, acquits, and forever discharges UTI, its
subsidiaries, and related and affiliated entities and the current
and former officers, directors, agents, assigns, representatives
and employees of each of the foregoing, from any and all actions,
claims, damages, lawsuits, expenses, or costs of whatever nature
arising out of Employee’s employment, the termination of
employment with UTI, and any claims Employee may have by virtue of
his being a shareholder of UTI, whether known or not, by either
party at the time of execution of this Agreement.
This
Release and Waiver includes, but is not limited to, any rights
or claims which may be brought under Title VII of the Civil
Rights Act of 1964, the Fair Labor Standards Act (FLSA), the
Americans with Disabilities Act (ADA), the Employee Retirement
Income Security Act (ERISA), the Equal Pay Act (EPA), the
Rehabilitation Act of 1973, the Family and Medical Leave Act
(FMLA), the National Labor Relations Act (NLRA), Occupational
Safety and Health Act, Sarbanes-Oxley Act, the Securities Act
of 1933, Securities Exchange Act of 1934, COBRA, the Labor
Management Relations Act (LMRA), the Arizona Civil Rights Act,
the Arizona Employment Protection Act or any other action or
claim under any federal, state or local statute, or regulation
or under common law. Employee’s release also includes
all claims for constructive discharge, negligent supervision,
breach of contract, fraud, breach of express or implied
covenant, defamation, libel, slander, intentional or negligent
infliction of emotional distress, tortious interference with
contract, retaliation, failure to pay wages, bonuses,
commissions or other benefits, attorneys’ fees and any
other claim that could be raised by Employee as a result of
Employee’s employment, the termination of employment
with UTI, or by virtue of Employee being a shareholder of
UTI.
This
Release and Waiver does not affect Employee’s right to
file a charge or participate in any federal, state or local
investigation by any governmental agency or to challenge the
validity of this Agreement, or Employee’s right to any
governmental benefits payable under any Social Security or
Worker’s Compensation law now or in the future.
Notwithstanding the foregoing, Employee acknowledges and
agrees that he (1) is not entitled to any monetary or personal
relief with respect to any charge filed by any person or
entity with any federal, state or local government agency; and
(2) specifically assigns any such recovery to UTI. Further,
this Agreement is not intended to and does not waive or
release any claim under the Arizona Minimum Wage
Act.
7.
Employee’s Release of Any Age Claims .
Also in consideration of the promises and understandings contained
in this Agreement, Employee hereby waives, releases, discharges,
and agrees that Employee will not institute, prosecute or pursue
any, claims, causes of action, or suits for claims, if any, that
have arisen as of the date of this Agreement under the Age
Discrimination in Employment Act (“ADEA”), as amended,
or under the age provisions of any other applicable state or
federal law. Employee acknowledges that he is knowingly and
voluntarily waiving and releasing any rights he may have under the
ADEA, as amended. 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 may have been
entitled. Employee further acknowledges having been 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)
he has been advised hereby of having had the right to consult
with an attorney prior to executing this
Agreement;
(c)
he has forty-five (45) days to consider this Agreement
(although he may choose to voluntarily execute this Agreement
earlier);
(d)
Employee has seven (7) days following the execution of this
Agreement by the parties to revoke the Agreement;
and
(e)
this Agreement shall not be
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