SEPARATION AGREEMENT, WAIVER AND RELEASERelease Agreement |
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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)
Employ
