Filed by Bowne Pure Compliance



 




Exhibit 10.1


CHANGE OF CONTROL SEVERANCE
AGREEMENT


This CHANGE OF CONTROL
SEVERANCE AGREEMENT (the “Agreement” or “Severance
Agreement”) dated           , 2008
(“Effective Date”) between
                (“Employee”) and Universal
Technical Institute, Inc., a Delaware corporation (the “Company”)
provides:


WHEREAS, in order to
accomplish its objectives, the Company believes it is essential that certain of
its executives, such as Employee, be encouraged to remain with the Company in
the event of a management transition and thereafter, or in the event there is
any change in corporate structure which results in a Change of Control; and


WHEREAS, Employee
wishes to have the protection provided for in this Agreement and, in exchange
for such protection, is willing to give to the Company, under certain
circumstances, a covenant not to compete and a release of all liability.


NOW, THEREFORE, the
parties hereto agree as follows:


1. Definitions.


a. “Board
of Directors” means the Board of Directors of the Company.


b. “Cause” means one or more of any of the
following:


(i) Employee’s conviction of, or plea of guilty or
nolo contendere to, any felony or a crime involving embezzlement,
conversion of property or moral turpitude;


(ii) A finding
by a majority of the Board of Directors of Employee’s fraud, embezzlement
or conversion of the Company’s property;


(iii) Employee’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 relating to the
business and affairs of the Company;


(iv) An
administrative or judicial determination that Employee committed fraud or any
other violation of law involving federal, state or local government funds
relating to the business and affairs of the Company;


(v) A finding by
a majority of the Board of Directors of Employee’s knowing breach of any
of Employee’s fiduciary duties to any company in the Company Group or the
Company’s stockholders or making of an intentional misrepresentation or
omission which breach, misrepresentation or omission would reasonably be
expected to have a material adverse effect on the business, properties, assets,
operations, condition (financial or other) or prospects of any company in the
Company Group;


 


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(vi) Employee’s alcohol or substance abuse, which
materially interferes with Employee’s ability to discharge the duties,
responsibilities and obligations prescribed by this Agreement as determined by
a majority of the Board of Directors;


(vii) Employee’s material and knowing failure to
observe or comply with law applicable to the business of the Company as an
officer or employee of the Company which would reasonably be expected to have a
material adverse effect on the business relationship, the business, properties,
assets, operations, condition (financial or other), or prospects of any company
in the Company Group as determined by a majority of the Board of Directors; or


(viii) Employee’s willful gross misconduct relating to
the business of the Company that results in significant harm to the Company or
its operation, properties, reputation, goodwill or business relationships as
determined by a majority of the Board of Directors,


provided that (i) any determination made by the Board of
Directors concerning the existence of Cause must be made in good faith and not
for purposes of evading the Company’s obligations hereunder; and
(ii) a finding of Cause may not be made unless, prior to determining that
Cause exists, the Employee shall be given written notice stating in reasonable
detail the facts and circumstances deemed by the Company to constitute Cause,
and thirty (30) days from receipt of such notice Employee has failed to
cure the facts and circumstances set forth in such notice.


c. “Change
of Control” means: (i) any sale, lease, exchange, or other transfer
(in one transaction or series of related transactions) of all or substantially
all of the Company’s assets to any person or group of related persons
under Section 13(d) of the Securities Exchange Act of 1934
(“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 Company 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 of Control be deemed to have occurred as a result of an
initial public offering of the Company stock. Also, notwithstanding anything to
the contrary herein, the fact that a transaction or event is defined as a
Change of Control for purposes of this Agreement shall not evidence or infer
that the transaction or event constitutes a change of control for purposes of,
including but not limited to, any determination or definition of the Department
of Education, any licensing agency, or for determining the duties of the
Company’s Board of Directors under Delaware corporate law.


d. “Code” means the Internal Revenue Code of
1986, as amended, and the regulations promulgated thereunder.


 


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e. “Company
Group” shall mean the entities listed on Schedule 1.


f. “Compete” shall mean to directly or indirectly
own, operate, manage, join, control, be employed by, be a consultant to, invest
in, or become a director, officer, agent, partner, member, independent
contractor or shareholder of any Competitive Business, as defined below. As
used in this Agreement, “Compete” does not include purely passive
investments in any publicly traded company so long as Employee does not
directly or indirectly own, acquire or obtain options to acquire, 5% or more of
any class of shares in such company.


g. “Competitive Business” means any (a) post
secondary educational entity or institution which conducts educational programs
in the areas of automotive, motorcycle, marine, diesel, or collision repair and
refinishing technologies (or a combination of these programs), or
(b) entity engaged in any other business conducted, or engaged in, by any
company in the Company Group, at the time of the Change of Control.


h. “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, student or prospective student lists or information, details of
client, student, consultant, vendor, supplier or manufacturer 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 or object codes), processes, procedures,
formulae, improvements or other proprietary or intellectual property of any
company in the Company Group, whether or not in written or tangible form, and
whether or not registered, 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 Employee
not permissible hereunder.


i. “Good
Reason,” when used with reference to a voluntary termination by Employee
of Employee’s employment with the Company, shall mean any of the
following conditions, provided that Employee (a) provides the Company with
actual notice of the condition giving rise to the termination within ninety
(90) days of the initial existence of the condition, (b) provides the
Company with the opportunity to cure within thirty (30) days of the
notice, and (c) terminates employment within two (2) years of the initial
existence of the condition:


(i) a material
diminution in:


(A) Employee’s base compensation;


(B) Employee’s authority, duties or responsibilities;
provided that, a material diminution of Employee’s authority, duties or
responsibilities shall be deemed to have occurred if Employee ceases to have
such authorities, duties or responsibilities with respect to the entity which
is the ultimate parent entity of the Company Group following the Change of
Control;




 


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(ii) A material
change in the geographic location at which the Employee must perform the
services.


(iii) Any other
action or inaction that constitutes a material breach by the Company of this
Agreement and such breach is not cured as set forth in Section 1(i) above.


j. “Market” means anywhere in the United States
or Puerto Rico. If an arbitrator or arbitration panel finds that this
definition of Market is unreasonable, then the Market will be considered to
mean all states in which the Company has a campus or other training center and
all states that are contiguous to a state in which the Company has a campus or
training center. If an arbitrator or arbitration panel finds that this
definition of Market is unreasonable, the Market shall mean all states in which
the Company has a campus or other training center.


k. “Regulations” means 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.


l. “Specified Employee” means any Company
employee that the Company determines is a Specified Employee within the meaning
of Section 409A of the Code. The Company shall determine whether an
employee is a Specified Employee by applying reasonable, objectively
determinable identification procedures set forth in a resolution of the Board
of Directors issued before December 31, 2007.


m. “Term” means the period commencing on the
Effective Date and terminating two (2) years after the Effective Date;
provided, however, that the Term shall automatically be extended for successive
additional one (1) year periods unless either party to this Agreement
provides the other party with notice of termination of this Agreement at least
ninety (90) days prior to the expiration of the initial two (2) year
period or any one (1) year period thereafter. Employee acknowledges that
the Compensation Committee of the Company’s Board of Directors shall have
the discretion to review this Agreement from time to time and the Company has
no obligation to continue this Agreement beyond the initial two (2) year
period if appropriate notice is given.


n. “Termination Date” shall mean the last day of
Employee’s employment with the Company.


2. Termination
Which is for Cause or Without Good Reason.


a. Following a
Change of Control, Employee’s employment may be terminated by the Company
for Cause at any time, effective upon the giving to Employee of written notice
of termination specifying in detail the particulars of the conduct of Employee
deemed by the Company to justify such termination for Cause. Employee may
terminate Employee’s employment with the Company at any time.


b. If termination
is for Cause or is voluntary without Good Reason, the Company shall pay to
Employee on the Termination Date (i) the full base salary earned by
Employee through the Termination Date and unpaid at the Termination Date,
including any accrued but unused vacation, and (ii) all other amounts
earned by Employee and unpaid as of the Termination Date.




 


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c. If termination
is for Cause or is voluntary without Good Reason, Employee’s then current
medical and dental benefits will continue pursuant to Company policy, until the
fifteenth (15th) day of the month in which termination occurs if termination
occurs between the first (1st) and fifteenth (15th) day of the month and
through the end of the month in which termination occurs if termination occurs
between the sixteenth (16th) day of the month and the end of the month.
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 Act of 1985 (“COBRA”).


3. Termination
of Employment Which is Without Cause or is for Good Reason. The Company may
terminate Employee’s employment with or without cause at any time without
notice. Subject to the provisions of Section 6 below, upon termination of
Employee’s employment within twelve (12) months after a Change of
Control which occurs during the Term and is without Cause or is voluntary by
Employee for Good Reason, Employee shall receive the following payments and
benefits:


a. The Company
shall pay to Employee during the twelve (12) month period following the
Termination Date an amount equal to x/12 1 multiplied by Employee’s
base annual salary at the highest rate in effect at any time during the twelve
(12) months immediately preceding the Termination Date. Employee will be
paid in equal biweekly installments in accordance with Company’s regular
payroll periods and practices. In addition, the Company shall pay to Employee,
during the twelve (12) month period following the Termination Date,
Employee’s targeted bonus for the fiscal year in which the Termination
Date occurs prorated to the Termination Date. Employee will be paid this bonus
amount in equal bi-weekly installments according to the Company’s regular
payroll periods and practices. The first payment to which Employee is entitled
will be paid to Employee on the first day of the month following the expiration
of the revocation period, if any, set forth in Exhibit A. At all times,
the right to each monthly payment made under this section 3(a) shall be treated
as the right to a series of separate payments within the meaning of 26 CFR
§1.409A-2(b) (2) (iii).


Notwithstanding the foregoing, if the
Employee is a Specified Employee on the Termination Date, all monthly payments,
if any, that are to be made following the fifteenth (15th) day of the third
(3rd) month of Employee’s taxable year following the taxable year in
which the Termination Date occurred, but before the date which is six
(6) months following the Termination Date, that are, in the aggregate, in
excess of the Excludable Compensation shall be paid in a lump-sum on the first
(1st) day of the seventh (7th) month following the Employee’s Termination
Date or, if earlier, the date the Employee dies following the Termination Date.
For purposes of this Section 3(a), “Excludable Compensation”
shall equal the lesser of two times (i) the Employee’s annualized
base compensation for the taxable year prior to the taxable year in which the
Termination Date occurred or (ii) the applicable limit set forth in
§401(a) (17) of the Code for the year in which the Termination Date
occurred.


b. To the extent
Employees’ Termination Date is prior to the date on which the Company has
paid any bonus to which the Employee may be entitled for the fiscal year
immediately preceding the Termination Date (i.e. between the end of the fiscal
year and the bonus payout), Employee will receive such bonus in a lump sum on
or before March 15th of the calendar year following the calendar year in
which the Termination Date occurs.






 



	1	 	For purposes of this Section 3(a), the numerator “x”
shall be twelve unless an arbitrator or an arbitration panel determines the
restricted period in Section 7(a) (i) (A) should be less than twelve
months, in which case the numerator “x” shall be the number of
months so determined to be reasonably necessary to protect the Company’s
legitimate business interests.




 


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c. Employee’s then current medical and dental benefits
will continue pursuant to Company policy, until the fifteenth (15th) day of the
month if the Termination Date occurs between the first (1st) and fifteenth
(15th) day of the month in which termination occurs and through the end of the
month if the Termination Date occurs between the sixteenth (16th) day of the
month and the end of the month in which termination occurs. 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 any applicable plan provisions and the
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). In addition,
the Company will continue to pay a monthly amount equal to the Company paid
portion of the insurance premium for the coverage held by Employee as of the
Termination Date, and any administrative fee, for a period of twelve
(12) 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 two percent (2%) administrative fee.


Upon Employee’s employment with
another employer during such period, to the extent covered by the new
employer’s plan, paid coverage under the Company’s plan shall
lapse, subject to any continuation of coverage rights under Section 601 of
ERISA.


Employee’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 the Termination Date, unless such benefit, program or plan is inalienable
under the law or 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
the Termination Date.


d. All stock
Awards (as defined in any applicable Plan), including stock options or
restricted stock shall vest and be paid according to the terms and provisions
of the Plan and the grant Agreement under which such Award was granted.


e. The Company
shall pay for reasonable outplacement services through a provider selected by
the Company for the twelve (12) months immediately following the
Termination Date.


f. Employee shall
be entitled to all of the payments and benefits specified in this
Section 3; provided that the amount payable under Section 3 and
otherwise due to a Change of Control do not (i) constitute an
“excess parachute payment” (as defined in Section 280G of the
Code) and, (ii) cause the Employee to be required to pay an excise tax
under Section 4999 of the Code. If such a reduction is necessary, the
aggregate amount payable to Employee under this Section 3 shall be reduced
to the largest amount that would result in no portion of the amounts payable to
Employee upon a Change of Control being subject to the excise tax under
Section 4999 of the Code. The determination of the reductions to be made
shall be made by the Company’s designated certified public accountants.
and such determination shall be conclusive and binding on the Employee and the
Company.


g. Notwithstanding any other provision of this Agreement to
the contrary, neither the time nor the schedule of any payment under this
Agreement may be accelerated or subject to a further deferral except as
provided in 26 C.F.R. § 1.409A 3 (j) (4).


h. Employee does
not have any right to make any election regarding the time or form of any
payment due under this Agreement.



 


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i. If the Company
fails to make any payment under this Agreement, either intentionally or
unintentionally, within the time period specified in this Agreement, but the
payment is made within the same calendar year, such payment will be treated as
made within the time period specified in the Agreement pursuant to 26 C.F.R.
§ 1.409A 3(d). In addition, if a payment is not made due to a dispute with
respect to such payment, the payment may be delayed in accordance with 26
C.F.R. § 1.409A 3(g).


j. For purposes
of this Agreement, the determination of whether Employee has terminated
employment will be made in accordance with 26 C.F.R. § 1.409A-1(h)(1).


k. This Agreement
shall be administered in compliance with Section 409A of the Code and each
provision of the Agreement shall be interpreted, to the extent possible, to
comply with Section 409A.


4. Mitigation
or Reduction of Benefits. Employee shall not be required to mitigate the
amount of any payment provided for in Section 3 by seeking other
employment or otherwise. Except as otherwise specifically set forth herein, the
amount of any payment or benefits provided in Section 3 shall not be
reduced by any compensation or benefits or other amounts paid to or earned by
Employee as the result of employment by another employer or otherwise after the
Termination Date.


5. Employee
Expenses After Change in Control. If Employee’s employment is
terminated by the Company within twelve (12) months after a Change of
Control which occurs during the Term and there is a dispute with respect to
this Agreement, then Employee’s reasonable legal expenses incurred by
Employee (a) to defend the validity of this Agreement, (b) if
Employee’s employment has been terminated for Cause, to contest such
termination, (c) to contest any determinations by the Company concerning
the amounts payable by the Company under this Agreement, or (d) to
otherwise obtain or enforce any right or benefit provided to Employee by this
Agreement, shall be paid by the Company if Employee is the prevailing party.
Such legal expenses shall be paid, if at all, within thirty (30) days of
the date of the determination that Employee is the prevailing party, but in no
event later than December 31st of the taxable year following the year in
which the Employee incurred the legal expense. The legal expenses reimbursed in
one taxable year will not affect the legal expenses eligible for reimbursement
by the Company in a different taxable year. Employee may not elect to receive
cash or any other benefit in lieu of the benefits provided by this Section.


6. Release.
In order to receive payments and benefits described in Section 3,
other than those provided in Section 2.b and 2.c, after the Termination
Date, Employee must execute a Release in the form attached as Exhibit A
and that Release must become effective. If Employee fails to sign the Release
within the period provided in the Release, or if Employee revokes the Release
within the seven (7) day revocation period provided therein, Employee will
forfeit any right to the payments and benefits described in Section 3. As
a general rule, Employee shall receive the Release from the Company on or
before Employee’s Termination Date, but in no event will Employee receive
the Release more than ten (10) days following Employee’s Termination
Date.


7. Covenant
Not to Compete. Payments and benefits payable pursuant to
Sections 3.a, 3.b, 3.c and 3.e are subject to the following restrictions.


a. Post-Termination Restrictions.



 


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(i) Employee
acknowledges that the services provided by Employee to the Company give
Employee 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 the payments and
benefits set forth above, Employee covenants and agrees that:


(A) From the
Effective Date hereof until twelve (12) months (or for six (6) months
if an arbitrator or arbitration panel finds that twelve (12) months are
unreasonable) after the Termination Date, Employee will not, without the
express written approval of the Chief Executive Officer of the Company,
directly or indirectly, anywhere in the Market, in one or a series of
transactions, Compete against any company in the Company Group, 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 Employee referred to above occur or are performed within or without the
Market, or (c) whether the Employee resides, or reports to an office,
within or without the Market.


(B) Without
regard to the reason for Employee’s termination, from the effective date
hereof until twelve (12) months after the Termination Date (which shall
not be reduced by (a) any period of violation of this Agreement by
Employee or (b) if the Company is the prevailing party in any litigation
to enforce its rights under this Section 7, the period which is required
for such litigation, Employee will not, without the express prior written
approval of the Chief Executive Officer of the Company, directly or indirectly,
in one or a series of transactions: (i) 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 any company in the Company Group or had a business relationship with any
company in 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 any company in the
Company Group; or (ii) employ or seek to employ or cause any Competitive
Business 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 Employee or
the Competitive Business employs or seeks to employ such person) employed or
retained by any company in the Company Group. Notwithstanding the foregoing,
nothing herein shall prevent the Employee from providing a personal letter of
recommendation to an employee with respect to a future or any other employment
opportunity.


(C) The scope
and term of this Section 7 would not preclude Employee from earning a
living in an occupation or position with an entity that is not a Competitive
Business. Upon the determination of a majority of the Board of Directors that
Employee has breached Employee’s obligations in any material respect
under this Section 7, the



 


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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 and
benefits to Employee under this Agreement.


b. Acknowledgment
Regarding Restrictions. Employee recognizes and agrees that the restraints
contained in Section 7.a (both separately and in total) are reasonable and
should be fully enforceable in view of the high level positions Employee has
had with the Company, and the Company’s legitimate interests in
protecting its Confidential Information and its goodwill and relationships.
Employee specifically hereby acknowledges and confirms that Employee is willing
and intends to, and will, abide fully by the terms of Section 7.a of this
Agreement. Employee further agrees that the Company would not have adequate
protection if Employee were permitted to work in a Competitive Business in
violation of the terms of this Agreement since the disclosure of such
information is inevitable and the Company would be unable to verify whether its
Confidential Information was being disclosed and/or misused.


c. Company’s Right to Injunctive Relief. In the event
of a breach or imminent breach of any of Employee’s duties or obligations
in this Agreement, including, without limitation, Employee’s duties and
responsibilities under the terms and provisions of Section 7.a of this
Agreement, the Company shall be entitled to immediately cease all payments and
benefits to Employee under Section 3.a, b, c and e and, in the event of an
actual breach, require Employee to disgorge and repay to Company all payments
and benefits previously paid to or conferred upon Employee under this
Agreement. Employee agrees that if Employee breaches any duties or obligations
Employee has under this Agreement, that Employee has no right to any money
under this Agreement and that Employee must return any money paid to Employee
hereunder. In addition to any other legal or equitable remedies the Company may
have (including any right to damages that it may suffer), the Company shall be
entitled to temporary, preliminary and permanent injunctive relief restraining
such breach or imminent breach. Employee hereby expressly acknowledges that the
harm which might result to Company’s business as a result of
noncompliance by Employee with any of the provisions of Section 7.a would
be largely irreparable. Employee specifically agrees that if there is a
question as to the enforceability of any of the provisions of Section 7.a
hereof, Employee will not engage in any conduct inconsistent with or contrary
to such Section until after the question has been resolved by an arbitrator or
arbitration panel. Employee undertakes and agrees that if Employee breaches or
threatens to breach the Agreement, Employee shall be liable for any
attorneys’ fees and costs incurred by Company in enforcing its rights
hereunder.


d. Employee
Agreement to Disclose this Agreement. Employee agrees to disclose, during the
twelve-month period following a Termination Date described in Section 1.n
the terms of this Section 7 to any potential future employer.


8. Confidential Information.


a. During and
after the Term, Employee will not, directly or indirectly, in one or a series
of transactions, disclose to any person, or use or otherwise exploit for the
Employee’s own benefit or for the benefit of anyone other than the
Company, any Confidential Information, whether prepared by Employee 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, and
(ii) in good faith by the Employee in connection with the performance of
Employee’s duties hereunder to persons who are authorized to receive such
information by the Company. Employee shall




 


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use Employee’s best efforts to
prevent the removal of any Confidential Information from the premises of the
Company, except as required in Employee’s normal course of employment by
the Company. Employee shall use Employee’s best efforts to cause all
persons or entities to whom any Confidential Information shall be disclosed by
Employee hereunder to observe the terms and conditions set forth herein as
though each such person or entity was bound hereby. Employee shall have no
obligation hereunder to keep confidential any Confidential Information, if and
to the extent disclosure of any such information is specifically required by
law; provided, however, that in the event disclosure is required by applicable
law, the Employee 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, Employee agrees to
deliver to the Company, at any time during the Term, or thereafter, all
Confidential Information which Employee may possess or control. Employee agrees
that all Confidential Information of the Company (whether now or hereafter
existing) conceived, discovered or made by Employee during the Term exclusively
belongs to the Company (and not to Employee). Employee 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. Employee
further agrees that provisions of this Agreement shall be held in strict
confidence by Employee and the Company and shall not be publicized or disclosed
in any manner whatsoever; provided however, that: (a) Employee may
disclose this Agreement to his/her immediate family; (b) the parties may
disclose this Agreement in confidence to their respective attorneys,
accountants, auditors, tax preparers, and financial advisors; (c) the
Company may disclose this Agreement as necessary to fulfill standard or legally
required corporate reporting or disclosure requirements; (d) the parties may
disclose this Agreement insofar as such disclosure may be necessary to enforce
its terms or as otherwise required by law; and (e) Employee must disclose
the provisions of Section 7 to prospective employers as set forth in
Section 7.d.


c. The terms of
this entire Section 8 shall survive the termination of this Agreement
regardless of who terminates this Agreement or the reasons therefore.


9. Notice.
All notices hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered personally or by courier, or (b) on the
third business day following the mailing thereof by registered or certified
mail, postage prepaid, or (c) on the first business day following the
mailing thereof by overnight delivery service, in each case addressed as set
forth below:


If to the Company:


Universal Technical Institute, Inc.


20410 North 19th Avenue, Suite 200 

Phoenix, Arizona 85027


Facsimile No.: (623) 445-9501 

Attn: General Counsel


If to Employee:


Any party may change the address to
which notices are to be addressed by giving the other party written notice in
the manner herein set forth.



 


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10. Agreement
to Arbitrate. All disputes or claims regarding this Agreement shall be
submitted for resolution exclusively to binding arbitration under the
Employment Arbitration Rules of the American Arbitration Association in
Phoenix, AZ, no later than six (6) months from the date such claim arises.
The arbitrator or arbitration panel shall have the authority to award
attorney’s fees and cost to the prevailing party. Any temporary or
permanent injunctive relief ordered by the arbitrator or the arbitration panel
may be enforced in a court of competent jurisdiction by either party by seeking
judicial confirmation of such award.


11. Successors; Binding Agreement.


a. The Company
will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, upon or prior to such succession, to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would have been required to perform it if no such succession
had taken place. A copy of such assumption and agreement shall be delivered to
Employee promptly after its execution by the successor. Failure of the Company
to obtain such agreement, upon or prior to the effectiveness of any such
succession, shall be a breach of this Agreement and shall entitle Employee to
benefits from the Company in the same amounts and on the same terms as Employee
would be entitled hereunder if Employee terminated Employee’s employment
without cause or for Good Reason. For purposes of the preceding sentence, the
date on which any such succession becomes effective shall be deemed the
Termination Date. As used in this Agreement, “Company” shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for in
this Section 11.a or which otherwise becomes bound by the terms and
provisions of this Agreement by operation of law.


b. This Agreement
is personal to Employee and Employee may not assign or delegate any part of
Employee’s rights or duties hereunder to any other person, except that
this Agreement shall inure to the benefit of and be enforceable by
Employee’s legal representatives, executors, administrators, heirs and
beneficiaries.


12. Severability. If any provision of this Agreement,
or the application thereof, to any person or circumstance shall, to any extent,
be held to be invalid or unenforceable, the remainder of this Agreement 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 Agreement shall be valid and enforceable to the fullest
extent permitted by law. An arbitrator or arbitration panel can reasonably
modify this Agreement by rewriting it and/or it can “blue-pencil”
this Agreement by striking things out.


13. Headings.
The headings in this Agreement are inserted for convenience of reference
only and shall not in any way affect the meaning or interpretation of this
Agreement.


14. Counterparts. This Agreement 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.





 


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15. Waiver.
Neither any course of dealing nor any failure or neglect of either party
hereto, in any instance, to exercise any right, power or privilege hereunder or
under law shall constitute a waiver of such right, power or privilege or of any
other right, power or privilege or of the same right, power or privilege in any
other instance. Without limiting the generality of the foregoing,
Employee’s continued employment without objection shall not
constitute Employee’s consent to, or a waiver of Employee’s rights
with respect to, any circumstances constituting Good Reason, provided that
Employee gives notice as required in Section 1.i. All waivers by either
party hereto must be contained in a written instrument signed by the party to
be charged therewith, and, in the case of the Company, by the Company’s
Chief Executive Officer.


16. Entire
Agreement. This instrument 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.


17. Amendment.
This Agreement may be amended only by a writing which makes express
reference to this Agreement as the subject of such amendment and which is
signed by Employee and the Company’s Chief Executive Officer.


18. Governing
Law. In light of Company’s and Employee’s substantial contacts
with the State of Arizona, the facts that the Company is headquartered in
Arizona and Employee resides in and provides services to the Company in
Arizona, the parties’ interests in ensuring that disputes regarding the
interpretation, validity and enforceability of this Agreement are resolved on a
uniform basis, and Company’s execution of, and the making of, this
Agreement in Arizona, the parties agree that: (i) any arbitration or
litigation involving any noncompliance with or breach of the Agreement, or
regarding the interpretation, validity and/or enforceability of the Agreement,
shall be filed and conducted exclusively in the state of Arizona; and
(ii) the Agreement shall be interpreted in accordance with and governed by
the laws of the State of Arizona, without regard for any conflict/choice of law
principles.


IN WITNESS WHEREOF,
Employee and the Company have executed this Agreement as of the day and year
first above written.


UNIVERSAL TECHNICAL
INSTITUTE, INC.


By:
                                                                              



	 	 	 	                                                                                      







 


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SCHEDULE 1


Companies in the Company Group consist
of:


a. Universal Technical
Institute, Inc. 

b. UTI Holdings, Inc. 

c. U.T.I. of Illinois, Inc.


d. Universal Technical Institute of Texas, Inc. 

e. Universal
Technical Institute of California, Inc. 

f. Custom Training Group, Inc.


g. The Clinton Harley Corporation 

h. Universal Technical Institute of
Arizona, Inc. 

i. Universal Technical Institute of North Carolina, Inc.


j. Universal Technical Institute of Northern California, Inc. 

k.
Universal Technical Institute of Massachusetts, Inc. 

l. Universal
Technical Institute of Pennsylvania, Inc. 

m. Universal Technical Institute
of Phoenix, Inc.



 


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Exhibit A

RELEASE


This RELEASE (the
“Release”) dated               ,
               is by and between
               (“Employee”) and Universal
Technical Institute, Inc., a Delaware corporation (“Company”);


WHEREAS, the Company
and Employee are parties to a Change of Control Severance Agreement dated
           , 2007 (the “Severance
Agreement”), which provides certain protection to Employee in the event
of management transition and thereafter and in the event there is any change in
corporate structure which results in a Change of Control of the Company; 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 Severance
Agreement;


NOW, THEREFORE, the
parties hereto agree as follows:


1. Mutual
Promises. The Company undertakes the obligations contained in the Severance
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 him or herself and his/her 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
Severance Agreement and this Release, (ii) Employee’s employment,
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 him or herself and his/her 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 claim, complaint, arbitration demand, or action to any 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 any Company Released Person arising out of any actions or non actions
on the part of any Company Released Person arising before the date of this
Release or any action taken after the date of this Release pursuant to the
Severance Agreement. 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 any Company Released Person, (ii) any claim of unjust,
wrongful, or tortious discharge (including, but not limited to, 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 Family and Medical
Leave Act, the Age Discrimination in Employment Act, 29 U.S.C. §621 et
seq., the Americans with Disabilities Act of 1990, 42 U.S.C. §12101 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 any Company Released Person arising from events
occurring prior to the date of this Release other than those payments and
benefits specifically provided herein and in the Severance Agreement.


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.


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. Further, this Release is not intended
to be a release of any claims under the Arizona Minimum Wage Act, effective
January 1, 2007.


3. Release of
Benefit Claims. Employee, for and on behalf of him or herself and his/her
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 Severance 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/she
is knowingly and voluntarily waiving and releasing any rights he/she 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 Severance Agreement is in addition to
anything of value to which he/she is 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 the execution date of this
Agreement; (b) Employee has been advised of having had 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 Severance 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.


UNIVERSAL TECHNICAL
INSTITUTE, INC.


By:
                                                                


EMPLOYEE


By:
                                                                


 


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