exv10w7w2






Exhibit 10.7.2




FIRST AMENDMENT

TO

EMPLOYMENT AGREEMENT




     Universal Technical Institute, Inc., (the “Company”), a Delaware corporation, and Kimberly J.
McWaters (the “Employee”) entered into an Employment Agreement (“Agreement”) dated July 8, 2008
(the “Effective Date”). By the execution of this First Amendment, Company and Employee hereby
amend the Agreement as provided below.



     1. The purpose of this First Amendment is to satisfy the documentation requirements of Section
409A of the Internal Revenue Code of 1986 (the “Code”). The Agreement has been and shall continue
to be administered in good faith compliance with the requirements of Section 409A from the
Effective Date through December 31, 2008. This First Amendment is effective as of January 1, 2009.



     2. Section 9.a.(iv) of the Agreement is hereby amended by adding the following paragraph to
the end thereof:




     The provision of medical and dental benefits during the six (6)
months following the expiration of COBRA coverage is subject to the
requirements of Section 409A of the Code. To ensure compliance with
Section 409A, the Company will assure that such benefits are payable
at a specified time or pursuant to a fixed schedule within the
meaning of 26 C.F.R. § 1.409A-3(1)(iv). In order to ensure
compliance with this provision of the regulations, the benefits
eligible for reimbursement in one taxable year will not affect the
benefits eligible for reimbursement by the Company in a different
taxable year. All reimbursements of benefits must be made no later
than December 31 of the taxable year following the taxable year in
which the expense was incurred. Employee may not elect to receive
cash or any other benefit in lieu of the benefits provided by this
Section.



     3. Section 9.c. of the Agreement is hereby amended in its entirety to read as set out
below:




     c. Unless otherwise prohibited by law, Employee’s employment
with the Company will terminate on the effective date of Employee’s
Disability. The effective date of Employee’s Disability, which will
be Employee’s Termination Date for purposes of this Section 9.c, is
the last day of the third month on which Employee receives
disability benefits pursuant to a Company sponsored disability plan
or the day on which Employee is determined to be totally disabled by
the Social Security Administration. Employee shall be entitled to
the following items upon Employee’s Disability, so long as Employee
has signed the release described in Section 11 below and not revoked it:




     (i) Severance payments as provided under Section 9.a.(ii); and



 









 






     (ii) All the payments and benefits set forth in Section
9.a.(i), (iii), (iv), (v), (vi), (vii) and (viii); and




     (ii) Disability benefits under the applicable plan or practice.



     4. Section 9.d.(i) of the Agreement is hereby amended in its entirety to read as set
out below:




     (i) Severance payments as provided under Section 9.a(ii),
provided however that the severance payments payable under Section
9.a(ii) shall begin on the first day of the month following the date
of Employee’s death; and



     5. Section 9.e. of the Agreement is hereby amended by adding the following new
sentence to the end thereof:




In all cases, the bonus payment to which Employee is entitled
pursuant to this Section 9.e, if any, will be paid to Employee on or
before the fifteenth (15th) day of the third
(3rd) month of Employee’s taxable year following the
taxable year in which Employee became entitled to the bonus.



     6. Section 9.f. of the Agreement is hereby amended by adding the following new paragraph (iv)
to the end thereof:




     (iv) To the extent any reduction of the Payments becomes
necessary pursuant to this Section 9.f, the reduction first shall
apply to amounts payable pursuant to this Section 9, or pursuant to
any other arrangement, that are not subject to Section 409A of the
Code. If the amount of the necessary reduction exceeds the amount
of the payments described in the preceding sentence, the reduction
will then apply on a proportional basis to amounts payable to
Employee that are subject to the requirements of Section 409A of the
Code.



     7. Section 9.j. of the Agreement is hereby amended in its entirety to read as set out below:




     j. For purposes of this Agreement, Employee’s Termination Date
shall be the date on which Employee incurs a “Separation from
Service.” For this purpose, the term “Separation from Service”
means either (1) the termination of Employee’s employment with the
Company and all affiliates, or (2) a permanent reduction in the
level of bona fide services that Employee provides to the Company
and all affiliates to an amount
that is 20% or less of the average level of bona fide services
that Employee provided to the Company and all affiliates in the
immediately preceding 36 months, with the level of bona fide
services to be calculated in accordance with regulations issued by
the United States Treasury Department pursuant to Section 409A of
the Code.



 









 






     Employee’s relationship is treated as continuing while Employee
is on military leave, sick leave, or other bona fide leave of
absence (if the period of such leave does not exceed six months, or
if longer, so long as Employee’s right to reemployment with the
Company or an affiliate is provided either by statute or contract).
If Employee’s period of leave exceeds six months and Employee’s
right to reemployment is not provided either by statute or by
contract, the relationship between Employee and the Company is
deemed to terminate on the first day immediately following the
expiration of such six month period. Whether a termination has
occurred will be determined based on all of the facts and
circumstances.




     For purposes of this paragraph, the term “affiliate” shall have
the meaning set forth in 26 C.F.R. § 1.409A-1(h)(3) (which generally
requires 50% common ownership).




     If Employee is providing services to the Company in more than
one capacity, for example as both an employee and a member of the
Board of Directors or an independent contractor for the Company,
Employee must terminate employment with or services to the Company
in all capacities in order to have a Separation from Service for
purposes of this Agreement.



     8. Section 9 of the Agreement is hereby amended by adding the following new paragraph
k. to the end thereof:




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



     9. Section 9 of the Agreement is hereby amended by restating the last paragraph in its
entirety to read as set out below:




     Notwithstanding any of the foregoing, if the Employee is a
Specified Employee on the Termination Date, all bi-weekly payments,
if any, that are to be made following the fifteenth
(15th) day of the third (3rd) month of the
Employee’s taxable year following the Employee’s taxable year in
which the Termination Date occurred, but before the date which is
six months following
the Termination Date, shall be paid in a lump-sum on the first
day of the seventh month following the Employee’s Termination Date
or, if earlier, the date the Employee dies following the Termination
Date.



     10. Section 17.a. of the Agreement is hereby amended in its entirety to read as set
out below:




     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 deemed to
be a material breach of this Agreement. 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 17 or which
otherwise becomes bound by the terms and provisions of this
Agreement by operation of law.



     11. Except as otherwise modified by this First Amendment, the Agreement shall continue in full
force and effect.



     IN WITNESS WHEREOF, Employee and the Company have executed this First Amendment as of the date
set forth below.



	 	 	 	 	 

	 	 	UNIVERSAL TECHNICAL INSTITUTE, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Its:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Date:
	 	December _____, 2008
	 
	 	 	 	 
	 	 	KIMBERLY J. McWATERS
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 

	 	Date:
	 	December _____, 2008